CITATION: Paderewski v. Skorski, 2017 ONSC 6594
COURT FILE NO.: 55024/14
DATE: 2017/11/03
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Paderewski Society Home (Niagara)
Plaintiff
– and –
Leopold Skorski, Alexander Davidoff and Alexandra Davidoff
Defendants
COUNSEL:
Zijad Saskin, for the Plaintiff
Malte von Anrep, for Leopold Skorski
Alexander Davidoff, Self-represented
Alexandra Davidoff, Self-represented
HEARD: July 31, August 1, 2, 3, 4, September 11, 12, 14, and 15, 2017
THE HONOURABLE JUSTICE J. R. HENDERSON
REASONS FOR JUDGMENT
INTRODUCTION
[1] The plaintiff is a non-profit corporation that owns and operates a 70-unit seniors’ residence, known as the Paderewski Society Home (the “Paderewski Home”) in St. Catharines, Ontario. The plaintiff brings this action in defamation against the defendant, Leopold Skorski (“Skorski”), and the defendant, Alexander Davidoff (“Davidoff”). The plaintiff’s claim against the defendant, Alexandra Davidoff, was dismissed at the conclusion of the plaintiff’s case.
[2] Skorski is the founder of the plaintiff corporation and served as its president for 16 years. He is now 91 years old and is a tenant at the Paderewski Home.
[3] The plaintiff submits that after Skorski retired from the Board of Directors of the plaintiff corporation (the “Board”), Skorski made defamatory statements about the Board and the manager of the Paderewski Home, Stella Fensom (“Fensom”). Among other things, Skorski stated that there had been financial irregularities at the Paderewski Home, and that members of the Board and Fensom had been abusive to tenants of the Paderewski Home.
[4] Further, after initially raising these issues with the Board, Skorski repeated the defamatory statements to multiple other entities, including Niagara Regional Housing (“NRH”), Niagara Regional Police Services (“NRPS”), other tenants of the Paderewski Home, local politicians, and to Davidoff.
[5] Davidoff is a self-described journalist who owns and operates a website known as Mayorgate. In the fall of 2013, Davidoff interviewed Skorski about the Paderewski Home, and on January 15, 2014, published an article on the Mayorgate website entitled “Seniors Languish in Intimidation” (the “Mayorgate article”). The Mayorgate article included statements that there had been financial irregularities, that there were issues of potential fraud, and that the tenants of the Paderewski Home had been abused and intimidated.
[6] The Mayorgate article is the essence of the complaint in this action. The plaintiff submits that both of the defendants are responsible for the defamatory statements made in the Mayorgate article. Although there were other critical statements made by Skorski, in addition to the Mayorgate article, the plaintiff relies on only one letter written by Skorski to NRH in early 2012, hereinafter called “the Gestapo letter.”
[7] Both defendants rely on the defences of justification and fair comment. Moreover, Skorski submits that he did not make any defamatory statements, but rather that he asked questions of the Board and regulatory authorities about the way in which the plaintiff conducted its business. Davidoff submits that he accurately reported the facts, and that he simply raised questions about the plaintiff’s operation.
[8] In addition, although neither defendant raised it in the pleadings, for reasons set out herein, I find that I should also consider the defence of responsible communication about matters of public interest.
BACKGROUND FACTS
[9] Skorski immigrated to Canada from Poland in approximately 1951. In Canada, Skorski operated a successful business, raised a family, and was heavily involved in several Polish Canadian associations.
[10] In the late 1980s, Skorski developed the concept, raised the funding, and made the government applications for the construction and operation of a residence for senior citizens of Polish ancestry.
[11] On March 1, 1991, the Paderewski Home opened. The plaintiff was at all times a non-profit corporation that was, and still is, run by a volunteer Board of Directors. Funding for the operation comes from NRH. The Bylaws of the plaintiff corporation provide for the annual election of Board members at the plaintiff’s annual general meeting (“AGM”).
[12] Skorski was the first president of the plaintiff corporation and remained president until July 1, 2007. Then, he remained on the Board as a past president until July 1, 2008.
[13] Skorski became a tenant at the Paderewski Home in approximately 2007. The Bylaws provide that tenants are not eligible to sit on the Board or to vote in any elections to the Board. However, because Skorski had been heavily involved with tenant issues, after receiving a petition from fellow tenants, the Board appointed Skorski as the tenants’ “Guardian Angel” in September 2008. Thereafter, Skorski continued to attend at and participate in Board meetings until his status was revoked by the Board in October 2009.
[14] Fensom was hired by Skorski to be the manager/bookkeeper for the Paderewski Home in 2006. Fensom had a small office on the premises and worked as a part-time paid employee. Her duties included collecting rent, renting units, contracting for maintenance, and generally managing the day-to-day operations of the Paderewski Home. Fensom reported to the Board and prepared monthly financial statements for review and approval by the Board. She attended Board meetings to answer questions about the statements.
[15] At some point, relations between Skorski and Fensom became strained. In general terms, after he retired as president, Skorski was still very interested in the operation of the Paderewski Home. He regularly asked Fensom questions about the monthly financial statements, tenant concerns, and the operation of the Paderewski Home.
[16] I accept that Skorski often felt that the answers that he received from Fensom were inadequate. Consequently, Skorski regularly took his questions to Board meetings and tenant meetings. When he still did not receive adequate answers, he took his questions and concerns to entities outside of the plaintiff corporation, including NRH, NRPS, regional councillors, and other politicians.
[17] In response to Skorski’s concerns, one of the regional councillors introduced Skorski to Davidoff who interviewed Skorski about the Paderewski Home on three or four occasions in the fall of 2013. Then, in November 2013, Davidoff made a video recording of his interview of Skorski. On January 15, 2014, Davidoff published the Mayorgate article. In March 2014, the plaintiff commenced this court action.
THE LAW
[18] The tort of defamation has two branches; namely, libel and slander. In this case, the plaintiff submits that the Mayorgate article constitutes libel, and that both defendants are responsible for the contents of the article. Also, the plaintiff claims that the Gestapo letter constitutes libel for which Skorski is responsible.
[19] In order to succeed in a defamation action, as discussed in Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640 at para. 29, and in Ottawa-Carlton District School Board v. Scharf, [2007] O.J. No. 3030 at para. 19, the plaintiff must prove the following three elements:
(i) that the impugned words were published;
(ii) that the impugned words refer to the plaintiff; and
(iii) that the impugned words were defamatory.
[20] Regarding the third element, Morin J. wrote at para. 22 of the Ottawa-Carlton case that the plaintiff must prove that the words were reasonably capable of a meaning that can injure the plaintiff’s reputation. In Grant, at para. 28, McLachlin C.J. wrote that the plaintiff must prove “that the impugned words were defamatory, in the sense that they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person.”
[21] If the plaintiff is able to prove these three elements, then the onus shifts to the defendants to prove on a balance of probabilities the existence of a defence. See the Grant case at para. 29 and the Ottawa-Carlton case at para. 23.
[22] In the present case, there is no dispute that the words were published and that the words referred to the plaintiff. Further, after hearing the evidence, I find that the words were defamatory. Therefore, the onus shifts to the defendants to prove that there is a valid defence. In the pleadings, the defendants raise the defences of justification and fair comment. However, in oral submissions, both defendants referenced passages from the Grant decision that relate to the new defence of responsible communication about matters of public interest.
[23] For justification to succeed as a defence, a defendant must prove on a balance of probabilities that the impugned words, construed according to their ordinary and natural meanings, were true in substance and in fact. See the decision in Stopforth v. Goyer, 1978 CanLII 1732 (ON SC), [1978] 20 O.R. (2d) 262 at para. 68.
[24] In Hodgson v. Canadian Newspapers Co. 1998 CanLII 14820 (ON SC), [1998], 39 O.R. (3d) 235 at para. 427, Lane J. wrote, and I accept, the following:
It is not necessary for the defendant to prove the truth of every word of the libel. If the defendant proves the sting, or main charge, of the libel he need not justify statements which do not add to the sting of the charge. Only the substance of the allegations need be proved and not the truth of each word.
[25] Further, a defendant cannot justify a defamatory statement by showing that the defendant was merely repeating the words of another person. Pursuant to the “repetition rule”, repeating a libel has the same legal consequences as originating it. See Grant at para. 119.
[26] The fair comment defence permits, under certain circumstances, a person to make a statement of opinion that is based on proven facts about a matter of public interest. The statement of opinion can include any deduction, inference, conclusion, criticism, judgment, remark, or observation that is generally incapable of formal proof. See Ross v. New Brunswick Teachers’ Assn., 2001 NBCA 62 at para. 56.
[27] The defence of fair comment was revised in the case of Simpson v. Mair, 2008 SCC 40, [2008] 2 S.C.R. 420 at para. 28, and confirmed in the Grant decision at para. 31. The test is as follows: (a) the comment must be on a matter of public interest; (b) the comment must be based on fact; (c) the comment must be recognizable as comment; (d) the comment must satisfy the objective test that any person could honestly express that opinion on the proved facts; and (e) the defence can be defeated if the plaintiff proves that the defendant was actuated by express malice.
[28] The new defence of responsible communication about matters of public interest was accepted and defined in the Grant decision at paras. 87 to 135, and in the case of Quan v. Cusson, 2009 SCC 62, [2009] 3 S.C.R. 712 at paras. 28 to 32. In Grant, at para. 95, McLachlin C.J. confirmed that this defence constitutes a change in the law and that it is a new defence that is separate and distinct from the traditional defences.
[29] This new defence, called “the defence of responsible journalism” in the United Kingdom, was based on the House of Lords decision in Reynolds v. Times Newspapers Ltd., [1999] 4 All E.R. 609. In Reynolds at p. 621, the House of Lords recognized that “freedom to disseminate and receive information on political matters is essential to the proper functioning of the system of parliamentary democracy.”
[30] In Grant, McLachlin C.J. confirmed at para. 3 that in a defamation action in Canada, the challenge of the court is to strike an appropriate balance between two conflicting values; namely, the fundamental right of freedom of expression, and the protection of a person’s reputation. Then, at para. 120, McLachlin C.J. wrote, “if a dispute is itself a matter of public interest and the allegations are fairly reported, the publisher should incur no liability even if some of the statements made may be defamatory and untrue…”
[31] At para. 126 of Grant, McLachlin C.J. summarized the defence of responsible communication about matters of public interest as follows:
The defence of public interest responsible communication is assessed with reference to the broad thrust of the publication in question. It will apply where:
A. The publication is on a matter of public interest and:
B. The publisher was diligent in trying to verify the allegation, having regard to:
(a) the seriousness of the allegation;
(b) the public importance of the matter;
(c) the urgency of the matter;
(d) the status and reliability of the source;
(e) whether the plaintiff's side of the story was sought and accurately reported;
(f) whether the inclusion of the defamatory statement was justifiable;
(g) whether the defamatory statement’s public interest lay in the fact that was made rather than its truth (“reportage”); and
(h) any other relevant circumstances.
[32] Regarding responsibility for the statements made in the Mayorgate article in this case, it is clear that Davidoff published the article and thus is responsible for its content. I find that Skorski is also responsible for the statements made in the Mayorgate article as Skorski provided the information for the article to Davidoff knowing and intending that his words would be published.
[33] In that respect, I accept the law as set out in Stopforth at para. 3 as follows:
It is settled law that where a person speaks defamatory words to the press with the intention or knowledge that they will be republished, the speaker is responsible in libel rather than in slander.
FINDINGS OF FACT
A. SKORSKI’S CRITICISM OF THE BOARD AND MANAGER
[34] At the heart of this litigation is the troubled relationship between Skorski and the Board. Skorski was passionate about the Paderewski Home, and after he left the Board he aggressively questioned the manner in which the Board operated. He would not accept what he felt was complacency from the Board.
[35] I find that after approximately 2010, the Board as a whole treated Skorski as a nuisance. His questions often offended Board members as they were tinged with the suggestion that the Board was not properly doing its job. I find that the Board had little patience for Skorski and often refused to answer or avoided his questions.
[36] Fensom’s role at the Paderewski Home was part of the problem. In general, Fensom, as the paid manager, was more knowledgeable than the Board members about the day-to-day operations. Therefore, Fensom often made executive decisions about the Paderewski Home that were later confirmed by the Board without much thought or analysis. This arrangement was not acceptable to Skorski, and consequently, Fensom was often the focus of Skorski’s criticism.
[37] The plaintiff alleges that the defamatory statements in the Mayorgate article can be divided into two broad categories; namely, complaints of financial irregularities, and complaints of tenant abuse and neglect. However, it should be noted that Skorski made multiple complaints about the Board and Fensom that evolved over time.
[38] The first strong criticism from Skorski started in approximately 2009 when Skorski raised concerns about missing cheques, irregular Christmas bonuses, and the installation of flooring and carpeting. He attended upon the plaintiff’s accountants to ask about these concerns, and then in September 2009, he raised these concerns at a Board meeting. I accept that he was very critical of Fensom’s conduct. Despite Skorski’s concerns, the Board approved the financial reports that dealt with these items.
[39] Then, unsatisfied, Skorski took these same concerns to NRH. In response, NRH conducted an audit of the plaintiff’s operation as it related to these issues. On December 3, 2009, NRH released the results of its audit. In summary, NRH confirmed that there had been an irregularity regarding two cheques, and that the irregularity had been corrected. NRH found that Skorski’s other concerns were unsubstantiated.
[40] In 2010, Skorski raised another set of concerns. These concerns included complaints that the Board had terminated the popular weekly home-cooked lunches for the tenants, that the Board shut off the outside water taps at the home causing difficulties for tenant gardeners, and that the Board held a Christmas party in 2010 at the Legion Hall rather than the Paderewski Home.
[41] By early 2011, Skorski had brought this set of concerns to the attention of the Board, NRH, and councillor Greg Washuta (“Washuta”). In April 2011, at Washuta’s request, NRH met with Board members to discuss these items. I find that at the NRH meeting, Skorski stated that Fensom “should resign or be fired.” By the end of the meeting, NRH and Washuta had concluded that there had been no improprieties by the Board or by Fensom.
[42] In May 2011, an incident arose involving a tenant, Janusz Zelichowski (“Zelichowski”), and the vice president of the Board, Tony Sotola (“Sotola”). Zelichowski alleged that Sotola had entered his unit to fix a toilet, but had left a mess. Zelichowski said that an argument ensued and that Sotola yelled and cursed at him in Polish. Zelichowski sent a letter of complaint to the Board and to NRH. He also enlisted Skorski’s assistance regarding alleged tenant abuse, and Skorski took up the cause.
[43] Skorski acknowledged that by 2011, there was an unofficial tenants’ committee that consisted of himself and four other tenants. This committee was a loose association that dealt with tenants’ concerns and conditions at the Paderewski Home. This unofficial committee generated at least three letters of complaint about conditions at the Paderewski Home.
[44] On July 25, 2011, the unofficial tenants’ committee sent a letter to NRH about tenant conditions. The letter was signed only “concerned tenants.” I find that the letter in fact was written by Kasmir Kalinowski (“Kalinowski”), but that Skorski and other members of the unofficial committee had endorsed the contents of the letter. The complaints listed in this letter included the termination of the home-cooked lunches, the outside water shut-off, the verbal abuse of Zelichowski, and the 2010 Christmas party.
[45] Subsequently, another letter of complaint was sent to the Mayor and to Lora Beckwith (“Beckwith”) who was an administrator with NRH. That letter is titled, “Few Examples of Abuse and Neglect”. It included complaints about the home-cooked lunches, the outside water shut-off, tenants’ apartments being entered, and tenants’ mailboxes being opened. This letter was signed by seven tenants, including Skorski.
[46] In early 2012, Skorski sent the Gestapo letter to the Mayor and Beckwith. This letter is undated and unsigned, but Skorski acknowledged that it was written and sent by him alone in the first few months of 2012, although he had help with the typing. The plaintiff relies on this letter in its defamation claim against Skorski.
[47] In the Gestapo letter, Skorski complains of “the brutal behaviour by the 1st Vice President, Mr. A. Sotola.” He also complains about “our abuse and neglect by the manager, Mrs. Stella Fensom and her organized clique within the Board of Directors.” The letter further states, “We have a genuine complaint and proof of the Gestapo style of treating helpless seniors.” The letter ends by asking the Mayor and Beckwith to “remove this woman and her clique from our life.”
[48] Skorski attempted to raise all of these matters at a tenant meeting with the Board on May 16, 2012, but he was prohibited by the Board from making the presentation that he intended.
[49] On September 5, 2012, five tenants, including Skorski, signed a letter addressed to NRH that expressed concern that the situation at the Paderewski Home was getting worse. That letter listed complaints of tenants’ apartments being entered, and tenants’ mailboxes being opened. It also included a complaint against Fensom for publicly screaming at another tenant.
[50] During the same time period, Skorski also questioned the Board’s financial dealings with two separate contractors; namely, Gale Force Contracting Inc. (“GFC”) and Glen Paul (“Paul”).
[51] Commencing in 2011, Skorski started to question payments by the plaintiff to GFC in the total amount of $33,592. The minutes of a Board meeting dated March 30, 2011, state that the plaintiff awarded a contract to GFC for a job replacing the linear fencing around the property at a cost of $29,000 plus HST.
[52] Skorski’s first concern about GFC was that he could not identify this entity. Unfortunately, “Gale Force Contracting Inc.” had been incorrectly identified as “Gale Force Fencing” in the financial statements. Once the misnomer was discovered, this concern was resolved.
[53] Skorski’s second concern about GFC was never resolved. Skorski knew that one of the Bylaws of the plaintiff corporation required either three written quotes or a public tender for a job of this size. Skorski’s concern was that there was no record of the plaintiff complying with this Bylaw in regard to the contract with GFC.
[54] Similarly, in 2012, Skorski questioned three cheques from the plaintiff payable to Paul in the total amount of $15,967 for building and installing privacy screens for the balconies of each of the tenants’ units. In the minutes of a Board meeting dated May 23, 2012, it is stated that the Board approved the hiring of “the manager’s carpenter” to do this job, but the name “Glen Paul” does not appear in the minutes.
[55] Skorski’s concern was that he could not identify any business operated by Paul, he could not ascertain Paul’s qualifications, and there was no evidence that three written quotes had been obtained for this job. Further compounding matters, it was later discovered that Paul is the brother of Fensom’s daughter-in-law.
[56] Skorski brought the concerns about GFC and Paul to the Board and then to NRH. Further, Skorski’s lawyer wrote to NRPS about these two issues on June 27, 2013. By letter dated December 18, 2013, NRH wrote that it had investigated, and had found that there were no irregularities regarding these two issues.
[57] The final significant concern is Skorski’s allegation that the Board conducted an unlawful election of Board members at its AGM on July 24, 2013. Because of the alleged problems at the Paderewski Home, Skorski attended that AGM with approximately 20 other people of Polish ancestry. Those who were not tenants at the Paderewski Home intended to run for office and/or vote in the election of Board members.
[58] At the AGM, the sitting president of the Board, Sabina Glowacki (“Glowacki”), told this group that they had not been invited and were not eligible to vote or to run for office. Skorski and the others insisted that they were eligible. Glowacki then terminated the meeting. Thereafter, the existing Board members and invited delegates retired to another room where the existing Board members were all re-elected. The Skorski group alleged that this election was improper.
[59] Skorski took his complaints regarding tenant abuse, financial irregularities, and the alleged irregular AGM to a regional councillor, who subsequently introduced Skorski to Davidoff in September 2013.
[60] Skorski testified that he did not accuse anyone of fraud or misappropriation of money at any time. He states that he simply raised questions and concerns and demanded answers. He testified that he did not read Davidoff’s article before it was published; however, he testified, and I accept, that he provided Davidoff with the information that is contained in the Mayorgate article and that he agrees with its content.
B. THE MAYORGATE ARTICLE
[61] Davidoff testified that he interviewed Skorski about the issues at the Paderewski Home in the fall of 2013; that he received most of the information contained in the article from Skorski; that he received copies of correspondence and documentation from Skorski and his lawyer; that he unsuccessfully attempted to contact the plaintiff and NRH about these issues; and that he fairly set out Skorski’s questions and concerns in the Mayorgate article. He submits that he did not accuse anyone of any wrongdoing, but he merely asked questions that would be of public interest.
[62] The Mayorgate article, dated January 15, 2014, is entitled, “Seniors Languish in Intimidation.” It includes approximately 19 pages of text, pictures of the Paderewski Home and Skorski, a video link to Davidoff’s recorded interview of Skorski, and copies of pieces of correspondence.
[63] Relevant excerpts of the text of the Mayorgate article are as follows:
“It took tenacity and perseverance to build the Paderewski Society Home, something Leo Skorski is not short of to this very day. Yet Leo’s goal to provide dignity and peace to its residents has been hit with a nightmare. Instead of dignity, fear has invaded the walls of the Paderewski, its residents exposed to intimidation and abuse. Within this intolerable climate of personal abuse of the residents, serious questions of possible misappropriation of monies has arisen.”
“The Paderewski Society Home is operated as a non-profit entity with a definitive set of By-Laws….Yet all those safeguards that have been put in place to create harmony and mutual respect have been disregarded and abused…”
“At the centre of the questions brought to Lora Beckwith and the NRH was the issue of how the manager of the Paderewski Home, Stella Fensom, had raised the income of her husband and provided him a bonus without apparent approval of the Board of Directors… It appeared that the manager had arranged the installation of new carpeting in a number of units to be done by her son…”
“This was only the beginning in a situation that has taken life at a seniors centre from a peaceful existence to a nightmare of abuse and intimidation… These people survived the Nazi occupation, labour camps and the terror of war. Together they journeyed to a land where a simple reward was offered for their willingness to help build a nation, that reward was a life with dignity and peace. That no longer exists for them at the Paderewski Society Home.”
“Abuse reached a new level when a resident well past his eighties was verbally assaulted by the Vice President at the centre. Leo Skorski took a copy of a letter by J. Zelichowski, the elderly resident who was abused, to Mayor Brian McMullan on December 12th, 2011.”
“Abuse of the residents at the Paderewski Society Home has not subsided to this day. Residents live under a climate of threat of eviction if they complain about anything, only Leo Skorski stands strong enough to continue his fight and search for the truth….”
“As the abuse of the residents had not found an end, nor had the specter of possible financial irregularity subsided, Leo Skorski had made attempts to raise questions regarding two substantial amounts paid for work done at the Paderewski Society Home. The first payment was related to a fencing project, the Manager’s Report of April 2011 relates to two installments paid to a company reported as Gale Force Fencing … totalling $20,000. This amount changes later to be reported as costing a total of $33,592. No explanation has been provided on the varying totals. Then privacy screens had been installed between balconies and a total of $12,810 paid to a Glen Paul for the work.”
“In total 67 privacy screens had been installed, all made of a simple lattice sheet bought from Home Depot… Of the remaining 67 screens, only 38 were installed by a Glen Paul, which if allowing Mr. Iwinski’s estimate also took 10 minutes per screen, then this Glen Paul was paid the equivalent of $2,023.70 per hour….”
“On July 24th, 2013 the Paderewski Society Home was to hold its annual meeting to elect a new Board of Directors, and an Executive. Some 25 to 30 members of various Polish organisations came to the annual meeting as potential candidates for the election…To the shock of all who came to volunteer their time to serve as members of the Board of Directors, the current sitting President Mrs. Glowacki informed all those in attendance that a new procedure had been put in place…all individuals had to register by phone prior to the meeting to be entitled to attend.”
“President Glowacki, she refused to provide answers and cancelled the meeting. Later it was announced that the whole retired Board of Directors and Executive re-elected themselves.”
“Leo Skorski cannot stand by idle and watch his dream, his effort and honour become trashed and tarnished in such a manner. Leo Skorski will continue to fight for the truth and the dignity of those who trust him.”
C. FINDINGS REGARDING GALE FORCE CONTRACTING
[64] I generally accept Fensom’s evidence that in 2011, part of the fence at the Paderewski Home blew down and the Board had to consider a contract for the repair. After obtaining three quotes for a repair, the Board recognized that the cost of the repair would be less than the insurance deductible. Accordingly, the Board instead decided to hire someone to replace the entire fence. The Board then retained GFC, one of the original bidders for the repair job, to replace the entire fence at a price of $29,000 plus HST.
[65] Robert Forsyth (“Forsyth”) was retained pursuant to a court order to prepare a forensic audit report of the financial affairs of the plaintiff. Except as discussed below, I accept Forsyth’s forensic report. Also, Forsyth’s evidence confirmed the general history in this case as he testified that Skorski raised ten to twelve concerns with him, but Forsyth found that only the concerns about the GFC and Paul contracts had some merit, as discussed below.
[66] I specifically accept Forsyth’s opinion that the Board violated its own internal Purchasing and Tendering Policy (“PTP”) in relation to the GFC contract. NRH is the government authority that is responsible for non-profit housing organizations in the Niagara Region. As such, NRH gives directives to housing providers regarding the way in which the organizations must operate. In the present case, NRH regularly gave directives to the plaintiff regarding purchasing and tendering practices. The plaintiff adopted those directives as the plaintiff’s PTP. At trial, the plaintiff’s PTP dated June 19, 2013 was tendered as an exhibit, but the parties agree that this policy was in effect with the same or similar wording at all relevant times.
[67] Therefore, I find that the relevant PTP of the plaintiff for both the GFC contract and the Paul contract included the following regulations:
The purchase of goods and services costing between $2000 and $14,999 requires three written quotes.
The purchase of goods and services costing $15,000 and over requires mandatory public tender.
Where circumstances justify awarding a contract to someone other than the lowest bidder, the reasons for not accepting the lowest bidder will be recorded in the Board minutes.
All documents must be retained for review by the NRH.
[68] The first problem in relation to the GFC contract is that the Board obtained three written quotes for the repair job, but the Board did not accept the lowest bidder. Instead, the Board accepted the second lowest bidder, the GFC bid. Fensom testified that the lowest bidder, First General, was booked up and could not do the job in a timely manner. However, a letter from First General was received in evidence that indicated that First General was not booked up and did not suggest to the plaintiff that it was.
[69] I agree with Forsyth that this transaction is very suspicious because the Board did not accept the lowest bidder, the minutes did not record the reason for not accepting the lowest bidder, and the reason now offered does not seem to be valid. In addition to being suspicious, I also agree that the acceptance of the original GFC repair bid constitutes a violation of the plaintiff’s own PTP.
[70] The second problem is that the job changed into a much larger job. Initially, quotes were obtained to repair approximately 300-375 linear feet of fence, but the eventual job awarded to GFC was for the installation of 975 linear feet of fence. I find that the Board did not obtain three quotes for the larger job. Rather, the Board simply hired GFC to do the larger job without considering any other bids. This again is a violation of the PTP of the plaintiff.
[71] Still further, the price for the larger job was over $30,000 including HST, and the PTP required a public tender for this size of contract. This was not done. Again, the Board violated the plaintiff’s own PTP.
[72] Accordingly, I find that the plaintiff violated its own internal regulations, and failed to operate as directed by NRH, with respect to the GFC contract.
D. FINDINGS REGARDING GLEN PAUL
[73] I generally accept Fensom’s evidence that in 2012, several tenants had installed ad hoc barriers on their balconies for privacy purposes, and that all of these barriers were removed when the balconies were painted.
[74] At about the same time, Fensom had arranged for Paul to build a simple privacy screen made of lattice work for her own unit. Others in the building saw the privacy screen made by Paul and liked it.
[75] I find that just prior to the Board meeting of May 23, 2012, Fensom told some of the Board members about the positive comments about her privacy screen. Then, at the same Board meeting, the Board approved a contract with “the manager’s carpenter” for the construction of 70 privacy screens at a cost of $165 per screen. I accept Sotola’s testimony that the name of Glen Paul was never mentioned to the Board members either before or at the Board meeting.
[76] I accept Forsyth’s evidence that there are multiple irregularities and violations related to the Paul contract. First, the Paul contract requires three written quotes according to the plaintiff’s PTP. No written quotes were ever obtained. This is a clear violation of the PTP.
[77] Second, if the Board decided to circumvent the requirement for three written quotes, the Board was required to set out the reasons for doing so in the Board minutes. Fensom suggested that the privacy screen contract was a custom job that only could be done by Paul, but those reasons were never recorded, and in fact are clearly untrue.
[78] Third, the Board has a duty to investigate a contractor’s qualifications prior to entering into a contract. In the directive from NRH dated September 21, 2009, at para. 5.6, a housing provider is required to award a contract “based on an assessment of the qualifications of the supplier. . . .”
[79] In the present case, there was no assessment of Paul’s qualifications done by the Board or by Fensom on behalf of the Board. The Board members were not even aware of the identity of Paul at the time the Board awarded the contract. Further, upon closer investigation, it was discovered that Paul did not run a contracting business, that Paul was unemployed, that Paul did not have a permanent residential address, that Paul had no place of business, that Paul suffered from a brain injury, and that Paul could not drive a vehicle. Thus, any assessment of Paul’s qualifications would likely have led the Board to conclude that he was not a qualified supplier. This is in violation of the directives from NRH, and it is well below the standard expected of any volunteer board.
[80] Fourth, the abovementioned NRH directive at para. 6.1 provides that staff who are responsible for assigning contracted work for a housing provider should not use the same contractor for personal purposes. The use of Paul to construct privacy screens for both the plaintiff and for Fensom violates this directive.
[81] Fifth, there are suspicious circumstances surrounding the payments to Paul. The PTP requires the Board to act on written quotes, but in this case, Paul’s written proposal for the job was dated June 11th, 2012. This was approximately three weeks after the Board approved the contract at the Board meeting. Moreover, the first payment to Paul was a cheque that was issued on May 24, 2012, well before the written proposal had been received.
[82] Sixth, the price of Paul’s contract changed on at least two occasions. On one occasion, Paul increased the price to $195 per screen because it was discovered that some of the screens would be a smaller size. In addition, at a later date, Paul charged an additional $600 for installation of 30 screens. Both changes are problematic because there can be no justification for either increase in price. The evidence discloses that some of the screens were smaller than originally estimated, but this would not logically suggest that the price should be increased. Further, the plaintiff employed a caretaker on staff who was capable of installing the screens, and in fact did install some of the screens. There was no need to pay extra for the installation.
[83] Seventh, it is clear that the Board never considered either of the changes to this contract at a Board meeting. If a contract had been approved by the Board, but the terms of the contract, particularly the price, changed, those changes should be considered and approved by the Board in advance. This was not done.
[84] Finally, and significantly, the entire Paul contract is suspect because Paul is the brother of Fensom’s daughter-in-law. Moreover, despite questions from Skorski and from Forsyth during his investigation, Fensom denied that she had a family connection to Paul until shortly before the start of the trial. I accept Forsyth’s view that the fact that Fensom deviated from the proper rules in so many ways, and then failed to disclose that she had a connection to the contractor is extremely suspicious.
[85] Forsyth testified that he was “on the fence” as to whether Fensom had committed civil fraud, until he obtained information that she had a family connection to Paul. Until that time, Forsyth thought that there was a possibility of fraud, but he also thought that this could simply have been a series of errors or misfeasance. After he obtained the information about Fensom’s relationship with Paul, Forsyth testified that he felt on a balance of probabilities, there had been a civil fraud.
[86] I do not accept Forsyth’s ultimate conclusion that fraud occurred regarding the Paul contract. In my view, there could have been a fraud, but it has not been proved on a balance of probabilities. The missing elements of civil fraud are the proof of a loss to the victim (the plaintiff) and the benefit to the fraudster (Fensom). However, I find that with respect to the Paul contract there were several violations of the plaintiff’s own regulations and the NRH directives, as set out above, and that the circumstances are very suspicious.
E. FINDINGS REGARDING THE AGM OF JULY 2013
[87] Both Sotola and Fensom testified that the Board followed the same procedure for the election of directors at the AGM each year. Specifically, the existing Board members retired at each AGM, but each retiring member was eligible for re-election.
[88] In addition, they testified that the Board, prior to the AGM, would send notices to many Polish associations in the community inviting those associations to send delegates to the meeting. The associations were required to deliver notices in writing of the names of their delegates, and those delegates would be eligible to vote and run for office. Therefore, at the AGM, those who were eligible to vote and to run for office would include the retiring Board members, and the delegates from the Polish associations.
[89] The procedure described by Sotola and Fensom seems to be the procedure set out in the initial 1991 Bylaw, but that Bylaw was repealed and replaced in 2010 by "Amended Bylaw #2" (“the 2010 Bylaw”).
[90] Under the heading "Electing Directors" at para. 6, the 2010 Bylaw reads, “Candidates for the Board of Directors shall be invited by the existing Board of Directors. The Board of Directors may vote to invite representatives of Canadian Polish social organizations to send representatives who would be eligible to vote and be elected to the board."
[91] However, under the heading “Eligibility" at para. 6a, the 2010 Bylaw reads, “Any person of good standing in the community and who is a Canadian of Polish ancestry is eligible. The residents of the Paderewski Society Home are not eligible for election to the Board of Directors."
[92] Reading these two excerpts together, I find that the 2010 Bylaw is unclear as to whether a person of Polish ancestry who is in good standing in the community must be invited by the Board before that person is eligible to vote and run for election to the Board. I accept that the ambiguity of the 2010 Bylaw was the foundation for the dispute about the July 2013 AGM.
[93] In any event, I find that the Board made a public request for persons to sit on the Board when in June 2013, the Board posted a public notice at Our Lady of Perpetual Help, known as the local Polish church. The church notice read, in part, “Any members of Polish organizations interested in serving on the board, please contact the office at 905-934-5050 before July 2013."
[94] I find that the church notice was an open invitation to those in the Polish community to run for election to the Board. The plaintiff takes the position that if a person wished to vote at the meeting or run for election, that person was required to contact the office in advance, so that person's identity would be known. With respect, if that was the intention of the Board, the notice did not make that clear. Further, there is nothing in the 2010 Bylaw that requires advance notice.
[95] The church notice could easily be interpreted to mean that a person should call the office to obtain information as to when and where the AGM would be held and whether there were any prerequisites to running for election. Given that the notice was drafted and posted by the plaintiff, I find that any ambiguity in the notice must be interpreted against the position taken by the plaintiff. Therefore, I find that the church notice was an open invitation to those of Polish ancestry who were in good standing in the community to attend at, and participate in, the Board elections.
[96] Accordingly, I accept that Skorski and his group had reason to believe that they were eligible to participate in the meeting, vote in the election, and run for office, provided they were not tenants at the Paderewski Home. I do not make any finding as to whether the results of the 2013 election were valid, but I find that the decision by Glowacki to terminate the meeting, and prohibit Skorski and his group from participation was an irregularity in the process.
F. FINDINGS REGARDING TENANT ABUSE AND NEGLECT
[97] The only tenant of Paderewski who testified at this trial was Skorski, and he testified that he did not live in fear at the Paderewski Home and that he had not been the subject of any abuse. Thus, any evidence of abuse of tenants by a Board member or by Fensom is hearsay evidence, and must be treated with caution.
[98] The only significant incident of alleged tenant abuse is the May 2011 incident involving Sotola and Zelichowski. Sotola testified at trial. Zelichowski was 95 years old at the time of the incident and was in poor health. He has since passed away. I permitted Zelichowski’s letter to the Board to be filed in evidence.
[99] In his letter, Zelichowski wrote that a very agitated member of the Board, namely Sotola, stormed into his apartment to find the source of a water leak. Instead of repairing the leak, he left his tools and a mess making it very difficult for Zelichowski to use the washroom. Zelichowski wrote that the next day, Sotola showed up again at Zelichowski’s unit, went into a rage, and began cursing at Zelichowski in Polish.
[100] Sotola testified that he was at a meeting at the Paderewski Home when a tenant informed Fensom that water was leaking into her apartment. Fensom and Sotola went to the apartment and could see that the water was coming from the unit upstairs, Zelichowski’s unit.
[101] The two of them went to Zelichowski’s unit, knocked on the door, and Zelichowski let them in. Sotola saw that water was leaking from the toilet, so he turned off the water. He installed a valve on the toilet, but it was the wrong size valve. He left the valve in place overnight so that the toilet was functional, but returned the next day with the proper valve.
[102] When he arrived at Zelichowski’s unit the next day, he knocked and Zelichowski let him in. Sotola said that as he was repairing the valve, Zelichowski seemed to be angry and struck Sotola in the shoulder with his cane. Zelichowski swore at Sotola and told him to get out of his apartment. Sotola said that he became upset and swore at Zelichowski. He completed the job and left.
[103] Fensom testified that immediately after this incident, Sotola told her that he had been struck by Zelichowski’s cane and that it hurt. Sotola wanted to call the police, but Fensom talked him out of it.
[104] Considering this evidence and the cautious approach I must take to hearsay evidence, I find that a verbal altercation occurred between Sotola and Zelichowski. I find that Sotola did not do anything wrong to start the confrontation. I accept that Sotola did something inadvertently that agitated Zelichowski, and that Zelichowski inappropriately responded by striking Sotola with his cane.
[105] However, Sotola was the vice president of a Board that was responsible for providing for these tenants, all of whom were seniors and some of whom had health issues. Although Zelichowski wrongly struck Sotola, in my view Sotola should have had the fortitude and composure to either defuse the situation or vacate the premises. Instead, I find that Sotola yelled and swore at a 95-year-old man who was in poor health.
[106] Sotola’s action was not egregious; it was just unreasonable for a person in his position. It showed a lack of insight into the position he held, and a lack of compassion for the Paderewski tenants.
[107] As to the general allegations of yelling at tenants, I find that I have no reliable evidence. At best, the evidence is unreliable untested hearsay. For example, there is a letter written by the tenants’ committee dated September 5, 2012, in which it is alleged that Fensom screamed at another tenant, Mr. Dolbaczuk, and threatened to evict him. The circumstances surrounding that incident were not described in that letter, and I heard no evidence about it. Therefore, I make no finding about this incident.
[108] Under the issue of tenant abuse or neglect, I also heard evidence of several other complaints by tenants that in my view are either insignificant or are easily explained. For example, I do not consider the termination of home-cooked meals or the water shut-off to be tenant abuse or neglect. The termination of home-cooked meals was as a result of a breach of health regulations after an inspection. The water shut-off was a limitation on the hours at which water was available for outside use, and this was a step taken by the Board to reduce its water bill.
[109] I accept that these types of complaints are the usual complaints that arise in the day-to-day operation of a seniors’ residence. The fact that the tenants do not like every aspect of living in the residence is not unusual and certainly does not amount to tenant abuse or neglect.
[110] There is also an allegation that the manager or someone from the Board entered tenants’ apartments from time to time without notice. In fact, there is no evidence of this. Also, given that the units are occupied by seniors, it was acknowledged that the Board was entitled to enter the apartments from time to time for emergency purposes.
[111] Regarding the allegation that the manager opened tenants’ mailboxes, the only evidence came from Skorski who said that on one occasion he was waiting for rent receipts and talked to Fensom about it in the morning. By later that day, the rent receipts were in his mailbox. He presumes that Fensom opened his mailbox and inserted the rent receipts. In my view, this is nothing more than speculation.
[112] In summary, I find that there was no pattern of tenant abuse or neglect. The only incident of any unreasonable conduct is Sotola’s overreaction to an altercation started by a tenant. This is an isolated incident and its overall effect on the conditions at the Paderewski Home is minimal.
THE DEFENCE OF JUSTIFICATION
[113] Given my findings of fact, I find that the defendants have proved on a balance of probabilities that the statements in the Mayorgate article regarding financial irregularities at the Paderewski Home are substantially true. The two most significant matters of financial irregularities are the plaintiff’s failure to follow its own regulations and procedures regarding the GFC contract and the Paul contract. In both cases, I have found that the defendants have proved that there were clear financial irregularities in the context of suspicious circumstances.
[114] Accordingly, I find that the defendants have proved that the statements with respect to financial irregularities are justified. Therefore, the plaintiff’s claim of defamation with respect to statements made about financial irregularities must fail.
[115] I acknowledge that the Mayorgate article includes statements about misappropriation of monies and fraud, and the defendants have not proved actual misappropriation of monies or actual fraud. I will deal with those statements in the next section.
[116] The main difficulty for Skorski and Davidoff regarding the justification defence is that the statements in the Mayorgate article about tenant abuse and neglect are not substantially true. The onus is on the defendants to prove that these statements are substantially true, and they have not done so.
[117] Therefore, I find that statements in the Mayorgate article such as “Seniors Languish in Intimidation”, “fear has invaded the walls of the Paderewski” and “a nightmare of abuse and intimidation” are not justified. I also find that the statements in the Gestapo letter such as “Gestapo style of treating helpless seniors” are not justified.
THE DEFENCE OF FAIR COMMENT
[118] Both Skorski and Davidoff rely on the defence of fair comment. In my view, this defence, as it relates to statements about tenant abuse and neglect, must fail in these circumstances.
[119] A fair comment must be based on fact. In this case, the defendants have not proved any facts that would permit either defendant to express these opinions or comments about tenant abuse or neglect. For example, statements such as “Seniors Languish in Intimidation”, or “fear has invaded the walls of the Paderewski”, or “a nightmare of abuse and intimidation” are all comments or opinions that are not based in fact. Therefore, I find that the defence of fair comment fails regarding the statements made in the Mayorgate article and the Gestapo letter about tenant abuse and neglect.
[120] Regarding the fair comment defence as it applies to financial irregularities, given my findings as to the truth of the financial irregularities, the fair comment defence must succeed.
[121] This leaves for my consideration the statements about misappropriation of monies and fraud. The plaintiff submits that, given that the defendants have not proved actual misappropriation of monies or actual fraud, the fair comment defence should fail regarding comments about those allegations. I disagree. Using comments about fraud as an example, the fact that actual fraud was not proved does not preclude the expression of an opinion about fraud, provided it is based on facts and meets the other criteria for a fair comment defence.
[122] The Mayorgate article does not allege actual misappropriation of monies or actual fraud; the article includes one comment about “possible misappropriation of monies” and one comment about “potential fraud”. Given my findings of fact, I find that these comments are a matter of public interest, are based on proved facts, and are recognizable as comment.
[123] Moreover, I find that the financial irregularities committed by the plaintiff combined with the suspicious circumstances that surround the GFC and Paul contracts provide a foundation for an honest opinion about the possibility of fraud. That is, the fact of financial irregularities in suspicious circumstances implies that there may be fraud. It raises the question. Therefore, it is the conduct of the plaintiff that has raised the question of potential fraud. The best evidence that the plaintiff’s own conduct raises the question of fraud comes from the accountant, Forsyth, who concluded that there was fraud. The same analysis applies to the comment about possible misappropriation of monies.
[124] For these reasons, I find that the defence of fair comment succeeds regarding the statements made by the defendants about financial irregularities, possible misappropriation of monies, and potential fraud. The fair comment defence fails regarding statements made about tenant abuse and neglect in both the Mayorgate article and the Gestapo letter.
THE DEFENCE OF RESPONSIBLE COMMUNICATION
[125] It is necessary for me to address this defence even though it was not raised in the pleadings. In oral submissions, all parties made passing references to the Grant decision and relied on passages from Grant that relate to this defence. For the most part, the parties treated this defence as part of the fair comment defence. No party objected to any other party making submissions in this respect. Therefore, I hereinafter provide my analysis of this defence as it relates to this case. Note that I will restrict my analysis of this defence to statements made about tenant abuse and neglect.
[126] There are two broad criteria to this defence; namely, that the subject of the publication is a matter of public interest, and that the publisher was diligent in trying to verify the allegations.
[127] I find that the defendants have satisfied the first criterion. That is, I accept that the treatment of seniors who reside in a publicly funded residence is a matter of public interest.
[128] Regarding the second criterion, I find that the subject matter of the Mayorgate article was serious and had public importance, but there was no urgency to publish the article. The real problem for the defendants is that they did not make diligent efforts to verify the disparaging allegations, or to seek out and publish the plaintiff’s side of the story. As a result, the plaintiff’s side of the story as it relates to tenant abuse was not presented in the article.
[129] Skorski may have been aware of some parts of the plaintiff’s side of the story regarding tenant abuse, and Skorski may have attempted to seek out the plaintiff’s side of the story at Board meetings. However, Skorski acted on the complaints of the tenants as if the tenants had provided Skorski with the entire truth. Specifically, I find that Skorski heard these complaints and then acted as an advocate for the tenants. Moreover, as discussed earlier, Skorski is responsible for Davidoff’s publication of the Mayorgate article. If the defence of responsible communication is unsuccessful for Davidoff, it is also unsuccessful for Skorski.
[130] Davidoff, as a journalist, knew that there was a duty to investigate before he published. Davidoff testified that he attempted to be fair and that his intention was to promote discussion about these issues. Davidoff further testified that he spent several months investigating before he wrote the Mayorgate article. However, in my view, Davidoff’s investigation fell far short of the standard expected from a responsible journalist.
[131] Davidoff testified, and I accept, that he interviewed Skorski several times at the Paderewski Home and elsewhere. He also met with Skorski’s lawyer and received copies of some documentation and correspondence. I accept that he spent more than 10 hours interviewing Skorski. By the time he wrote the Mayorgate article, I find that Davidoff believed Skorski absolutely. But, he only had one side of the story.
[132] Accepting Davidoff’s evidence at its best, I find that Davidoff’s investigation of the plaintiff’s side of the story consisted of one or two telephone messages left on an answering machine at the Paderewski Home. His calls were not returned. He never spoke to any staff member of the Paderewski Home, any Board member, the manager, or any tenant other than Skorski. He also made a telephone call, unreturned, to NRH.
[133] Further, Davidoff acknowledged that he provided little information in the telephone messages that he left at the Paderewski Home as he did not want to leave sensitive material on an answering machine. He did not provide any information as to the nature of the story or the allegations. He did not ask to speak with Fensom, Sotola, or Glowacki. He simply left a message that he was a journalist doing a story and would like someone at the Paderewski Home to call him.
[134] Davidoff’s investigation into Skorski’s allegations cannot be described as diligent or responsible. Given the serious allegations made by Skorski, Davidoff should have actively sought out the plaintiff’s version of events. He should have attended the Paderewski Home and asked to speak to the individuals who would have knowledge of these allegations; he should have interviewed other tenants; he should have informed the plaintiff of the nature of the allegations against the Paderewski Home. He did none of this.
[135] Therefore, the second criterion of this defence of responsible communication is not proved. The defence of responsible communication fails regarding the statements about tenant abuse and neglect in the Mayorgate article. Regarding the Gestapo letter, this defence also fails.
DAMAGES AND REMEDIES
[136] The plaintiff is entitled to general damages for defamatory statements about tenant abuse and neglect. It is not entitled to damages for any other disparaging statements made by the defendants.
[137] I accept that the defamatory statements about tenant abuse and neglect have been disseminated to a segment of the population and have caused a loss of reputation for the Paderewski Home. I find that the dissemination of the defamatory statements was almost entirely through the Mayorgate article. The Gestapo letter was only read by a small number of people at NRH, and I find that it had little effect on the plaintiff’s reputation.
[138] All of the significant information in the Mayorgate article was provided to Davidoff by Skorski, and Skorski provided that information knowing and intending that it would be published. Therefore, I find that Skorski and Davidoff should be jointly and severally liable for any general damages payable to the plaintiff.
[139] There are several factors that I have taken into account in assessing the quantum of damages. First, I take into account the number of people who read, or who had the opportunity to read, the defamatory statements.
[140] I find that the Mayorgate website in 2014 had approximately 3,000 visitors per month. There is no way of knowing how many of these visitors actually read the Mayorgate article as there are multiple articles on the website. I can only find that there was potential for up to 3,000 visitors per month to read the Mayorgate article as of 2014.
[141] I also acknowledge that the Mayorgate website has a regular following and that a person may have visited the website more than once per month. Therefore, the 3,000 visitors per month likely refers to a much smaller number of individual persons.
[142] Aggravating the damage is the fact that the article has remained posted on the Mayorgate website to this date, and therefore it has been visible to any visitors to the website since it was first posted in January 2014. Moreover, I find that the number of visitors to the website has increased since 2014, up to as many as 30,000 visitors per month. The best evidence I have is that at present there are approximately 8,000 to 10,000 visitors per month.
[143] The second factor that I take into account is the fact that the allegations are serious. I accept that the issue of elder abuse is important to a large segment of the population, particularly where the abuse is said to have been conducted by a publicly funded organization.
[144] Third, given that there is public funding of the Paderewski Home, the allegations of tenant abuse may affect the plaintiff’s source of public funds, and may also affect its reputation in the community to the extent that possible private fundraising may be suppressed.
[145] Fourth, as a mitigating factor, I find that Skorski in particular had good intentions. I find that Skorski did not want to needlessly disparage the Paderewski Home. The Paderewski Home was Skorski’s own creation and I accept that he believed that he was attempting to protect his creation. Similarly, I find that Davidoff had good intentions as he believed that Skorski had raised issues of public concern.
[146] Fifth, I must look at the conduct of the plaintiff. In my view, Skorski was right to confront the Board about financial irregularities, but the Board mishandled and ignored his complaints. If the Board had reasonably considered Skorski’s criticism, these matters may not have escalated to the point of the Mayorgate article. That is, Skorski went to the media only after his criticisms, some of which were accurate, had been ignored by the Board and the public authorities.
[147] Sixth, if general damages constitutes compensation for loss of reputation, I must consider the nature of the reputation that has been lost. In my view, given the financial irregularities, the Board’s mishandling of Skorski’s complaints, and the Board’s questionable conduct at the AGM, the reputation of the Paderewski Home has been tarnished by its own actions. This was not a pristine, well-run organization at the time of the publication of the Mayorgate article. I find that the unfounded complaints of tenant abuse reduced Paderewski’s reputation, but other conduct by the plaintiff has also undermined its reputation.
[148] Where the words complained of contain more than one charge, the defendant is liable for damages in respect of those parts that are not justified. See Hodgson at para. 429. However, if the words are partially justified, this may be a source of mitigation of damages. See the case of Pamplin v. Express Newspapers Ltd. [No. 2], [1988] 1 All E.R. 282.
[149] There are no cases that are directly on point regarding general damages. The closest is the case of St. Michael’s Extended Care Centre Society v. Frost, 1994 CanLII 8927 (AB KB), [1994] 153 A.R. 326 [ACQB] in which general damages were awarded in the amount of $20,000 for defamation of a non-profit nursing home and seniors’ lodge. In the St. Michael’s case, there were defamatory allegations of fraud and shady financial dealings by the plaintiff, and these were not justified. However, unlike the present case, there was no unsuccessful or justified aspect of the defamation claim in the St. Michael’s case.
[150] The only other decision that is helpful is the case of Lord Selkirk School Division v. Warnock, 2015 MBQB 195 in which the plaintiffs sued a former student at the school. The student had posted statements on a blog that accused his former teacher of being a racist, liar, and a criminal; alleged that the director was a criminal and had lied under oath; and alleged that the Division had actively encouraged cheating in the classroom. General damages were assessed in that case at $20,000 for each of the three plaintiffs.
[151] Considering all of the above mentioned factors, I find that a modest amount of general damages should be awarded. I fix general damages at the sum of $10,000. This amount is payable jointly and severally to the plaintiff by Skorski and Davidoff.
[152] Regarding the other remedies that are requested, I also make an order that Davidoff shall forthwith remove the Mayorgate article from his website and that neither Davidoff nor Skorski shall republish it.
SKORSKI’S COUNTERCLAIM
[153] Skorski has a counterclaim for punitive damages. However, Skorski does not raise any cause of action in the counterclaim; Skorski only claims punitive damages.
[154] Punitive damages cannot stand alone. Punitive damages may only be awarded as a consequence of a successful claim that a party has committed a wrong. A claim for punitive damages does not constitute a cause of action. See Mancini (Trustee of) v. Falconi, [1993] O.J. No. 146 (C.A.) at para. 26. Therefore, Skorski’s counterclaim must fail on the pleadings alone.
[155] Furthermore, given my findings in this case, there is no reason or cause from which punitive damages may arise. Accordingly, Skorski’s counterclaim is dismissed.
CONCLUSION
[156] For these reasons I grant judgment to the plaintiff in the amount of $10,000, payable jointly and severally by Skorski and Davidoff. Skorski’s counterclaim is dismissed.
[157] I also order that Davidoff shall forthwith remove the Mayorgate article from the Mayorgate website and that neither Davidoff nor Skorski shall republish it.
[158] If there are any issues arising out of this decision, including the costs of the plaintiff, Skorski, Davidoff, or Alexandra Davidoff, I direct that the party seeking relief shall deliver written submissions to the trial coordinator at St. Catharines within 20 days of the release of this decision with responding submissions to be delivered within 10 days thereafter. If no submissions are received within this timeframe, the parties will be deemed to have settled all of the remaining issues as between themselves.
J. R. Henderson J.
Released: November 3, 2017