Court File and Parties

OSHAWA COURT FILE NO.: CV-15-90821 DATE: 20180820 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Colleen Andrews Plaintiff – and – Helen Dzambazov Defendant

Counsel: Neil Wilson and Yolanda Song, Counsel for the Plaintiff Howard Cohen and Jessica Parise for the Defendant

HEARD: July 26, 2018

Reasons for Decision

de Sa J.:

Overview

[1] The Defendant has brought a motion for summary judgment. According to the Defendant, the Plaintiff’s claims of defamation and libel are frivolous, and it is plain and obvious that the Plaintiff’s action cannot succeed at trial.

[2] The Defendant asserts that the statements in question are true, and/or are entirely protected under qualified privilege/fair comment. The Defendant seeks that the claim be dismissed.

[3] I disagree with the Defendant that the Plaintiff’s claim is frivolous and/or discloses no cause of action. For the reasons outlined below, the motion for summary judgment is dismissed.

Summary of Facts

[4] The Plaintiff, Colleen Andrews (“Ms. Andrews”), is the Principal of West Hill Public School (“West Hill”) in the Toronto District School Board (the “TDSB”). Ms. Andrews has over 26 years of education experience. Of those years, she has been a Principal for approximately five years, and a Vice Principal for twelve.

[5] Ms. Andrews first encountered Ms. Dzambazov (the Defendant) in October 2014. At the time, Ms. Andrews was seeing a man named Mathew Coleman (“Mr. Coleman”).

[6] On October 24, 2014, Ms. Dzambazov followed Mr. Coleman and Ms. Andrews while they were driving in Ms. Andrews’ car. Ms. Dzambazov attempted to corner Ms. Andrews’ car in the parking lot, and proceeded to bang on Ms. Andrews’ car window. Ms. Andrews learned from Mr. Coleman shortly thereafter that Ms. Dzambazov was his former common-law spouse.

Affidavit in Family Law Proceedings

[7] Ms. Andrews encountered Ms. Dzambazov again in the context of her Family Law Proceedings (child custody dispute). Ms. Dzambazov provided Mr. Andrews (the Plaintiff’s ex-husband) with an affidavit from one of her employees, Mr. Szpilewicz.

[8] Mr. Szpilewicz swore an affidavit stating that throughout the summer and into the fall of 2014, he had, on many occasions, seen Ms. Andrews purchase drugs and smoke crack cocaine. He also gave evidence that Ms. Andrews often had sex outdoors on an air mattress by the Rouge River, and had worked as an undercover “madam” with the Durham Regional Police in order to catch “johns hiring prostitutes”. Mr. Szpilewicz alleged, amongst other things, that Ms. Andrews had told him that she occasionally had to have sexual intercourse with an alleged “john” in order to gain his trust.

[9] Ms. Andrews strenuously denies the truth of any of these allegations. Faced with such serious allegations, Ms. Andrews willingly submitted to drug testing. On December 9, 2014, Ms. Andrews underwent a 3-month hair follicle test that screened for drugs and alcohol. On December 23, 2014, Ms. Andrews underwent a 6-month hair follicle test for drugs and alcohol. The drug test results were all negative.

Communication with the School

[10] Ms. Dzambazov also began contacting a TDSB Superintendent and Trustee of the TDSB (Ms. Persaud). Ms. Dzambazov made various statements regarding Ms. Andrews, admonished the TDSB for not terminating her, and threatened to bring the matter to the Toronto Star. In an email on November 21, 2014, Ms. Dzambazov wrote:

I will continue with police and now the Toronto Star Reporter, I’m sure the story will be front page and will be extremely scandalous and the public will be outraged. I will mention all the non-action taken by the Toronto District School Board into terminating Colleen Andrews as a principal as she’s associating with a known criminal having sex in public places paying for it with taxpayers’ dollars buying crack cocaine and theft of business funds, and then videotaping and asking to be in threesomes.

The taxpayers whom pay the salaries of the school staff and the pensions all have the right to know they are being defrauded by some dangerous and evil criminals. I believe that students and Parents should absolutely be concerned that criminals are being funded for illegal activities.

[11] Ms. Dzambazov emailed Ms. Persaud again on December 3, 2014 and enclosed her affidavit from the family law proceedings. Ms. Dzambazov asked Ms. Persaud to review her affidavit and further stated:

…I have also another affidavit from a former employee who has seen Mathew and Colleen doing crack cocaine and having sex in motels along Kingston Road.

He was also asked by Colleen to participate in a threesome in which she would pay for and wanted to record it.

I have other former employees swearing affidavits as well and a criminal investigation is currently ongoing across three different governments both Mathew and Colleen have defrauded my business of approximately $200,000.

Two crime reports will be breaking the story in a week Christie Blatchford and Wendy Gillis.

I believe I am doing right as my life and family and friends have all been threatened this in exposing evil people and alerting the proper authorities.

[12] Later in December of 2014 or early January 2015, Ms. Dzambazov called Ms. Persaud. Ms. Dzambazov angrily demanded that Ms. Andrews be fired, said she would continue to call the TDSB until Ms. Andrews lost her job, and stated the following about Ms. Andrews:

a) That she stole $200,000 from her company;

b) That she is on drugs, namely crack cocaine;

c) That she has done sexual acts on a mattress in the Rouge River and it has been documented on film;

d) That she has sexual encounters with men in work vans;

e) That she is having affairs with other men;

f) That she is under investigation by the police for three matters, one being fraud; and

g) That Tom (Mr. Andrews) has taken her kids because she is on drugs and a bad mother.

[13] Eventually, Ms. Persaud told Ms. Dzambazov that she should direct her concerns to the police. Ms. Dzambazov told Ms. Persaud that she already made a complaint against Ms. Andrews at Toronto Police 43 Division, then continued to rant. Ms. Persaud was forced to terminate the call.

Ad in the Mirror

[14] On January 29, 2015, the Scarborough Mirror published a classified Ad placed by Ms. Dzambazov that read as follows:

REWARD

Call 416-700-7084

Anyone having information about

Sunshine Tree Services

Or Dave Coleman, Mathew Coleman,

John Klunkovski, Tammy McPherson,

Mark Morin, Eliza Willoughby,

Colleen Blanche Andrews (aka Aunt, Madam, Principal West Hill P.S.).

[15] “Aunt” is a term used for the derogatory word “cunt”. “Madam” is a common slang term for a female head of a house of prostitution, or a woman otherwise involved in the management of prostitution.

[16] The very next day, on January 30, 2015, the TDSB and West Hill representatives contacted the Plaintiff. Ms. Andrews learned that a parent had called the phone number in the Ad because she had become concerned.

[17] In the call Dzambazov made the following statements about Ms. Andrews:

1. That she stole $200,000 from her company;

2. That she is on drugs, namely crack cocaine;

3. That she has done sexual acts on a mattress in the Rouge River and it has been documented on film;

4. That she has sexual encounters with men in work vans.

5. That she is having affairs with other men;

6. That she is under investigation by the police for three matters, one being fraud;

7. That Tom (Mr. Andrews) has taken her kids because she is on drugs and a bad mother; and

8. That she is suspended from her job.

[18] Ms. Dzambazov also advised that:

1. She would not stop the harassment until Ms. Andrews is out of a job;

2. That she will make sure all the parents of children at West Hill know all this information about her; and

3. That she will continue to call the TDSB every day to make sure that Ms. Andrews is and continues to be suspended from her job.

[19] On January 30, 2015, Ms. Andrews also learned that in early January, while the office administrator of West Hill was on break, and a grade six student was temporarily staffing the reception desk, a woman (believed to be Ms. Dzambazov) called with disturbing statements against Ms. Andrews. The woman asked the young student whether she knew that her principal was on drugs. She told the student that she intended to go to the media with her story about the principal. The call clearly upset the student. She had to be sent to the acting principal and her parents had to be informed of the incident.

[20] The Plaintiff served a libel notice on the Scarborough Mirror specifically asking for the identity of the person who placed the Ad. The Ad was initially to run for four weeks until February 10, 2015, but was pulled after only the first publication following service of the libel notice.

[21] Ms. Andrews brought an urgent injunction to restrain Ms. Dzambazov’s behaviour. In response to the motion, Ms. Dzambazov agreed to sign an undertaking not to initiate communications, directly or indirectly, with any parent, student or employee of the TDSB or with any form of media regarding the Plaintiff, and the undertaking was incorporated into a court order allowing the Plaintiff to bring the injunction motion back on short notice if the undertaking was breached.

Analysis

Is there a Genuine Issue Requiring a Trial?

[22] Pursuant to Rule 20.04(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, the court shall grant summary judgment if it is satisfied there is no genuine issue requiring a trial. Animating the interpretation of 20.04(1) is Rule 1.04 which requires that the rule be liberally construed to secure the just, most expeditious and least expensive determination of a proceeding on its merits having regard to the complexity of the issues and the amounts involved.

[23] Rule 20.04 aims to avoid protracted litigation in circumstances where such litigation is unnecessary to achieve a just result. The judge in deciding whether to grant summary judgment must ask: can the full appreciation of the evidence and issues that is required to make dispositive findings be achieved by way of summary judgment, or can this full appreciation only be achieved by way of trial?

[24] A trial is not required if the judge on the motion can 1) achieve a fair and just adjudication; 2) make the necessary findings of fact; 3) apply the law to those facts; and 4) the motion is a proportionate, more expeditious and less expensive means to achieve a just result rather than going to trial. As the Supreme Court explained in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 SCR 87, at para. 50:

These principals are interconnected and all speak to whether summary judgment will provide a fair and just adjudication. When a summary judgment motion allows the judge to find the necessary facts and resolve the dispute, proceeding to trial would generally not be proportionate, timely or cost effective. Similarly, a process that does not give a judge confidence in her conclusions can never be the proportionate way to resolve a dispute. It bears reiterating that the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principals so as to resolve the dispute. [Emphasis added]

[25] The assessment, by its nature, is necessarily contextual. It involves a balancing of the various interests at play. Indeed, if the process ultimately employed to resolve the issues is disproportionate to the nature of the dispute and the amounts involved, then it will not achieve a fair and just result. (See Hryniak at para. 29). What is fair and just turns on the nature of the issues, the nature of the evidence required to resolve those issues and what is the proportionate procedure having regard to the amounts involved. As the Supreme Court of Canada explained at paras. 27-29:

A proper balance requires simplified and proportionate procedures for adjudication, and impacts the role of counsel and judges. This balance must recognize that a process can be fair and just, without the expense and delay of a trial and that alternative models of adjudication are no less legitimate than the conventional trial.

This requires a shift in culture. The principal goal remains the same: a fair process that results in a just adjudication of disputes. A fair and just process must permit a judge to find the facts necessary to resolve the dispute and to apply the relevant legal principles to the facts as found. However, that process is illusory unless it is also accessible—proportionate, timely and affordable. The proportionality principle means that the best forum for resolving a dispute is not always that with the most painstaking procedure.

There is, of course, always some tension between accessibility and the truth-seeking function but, much as one would not expect a jury trial over a contested parking ticket, the procedures used to adjudicate civil dispute must fit the nature of the claim. If the process is disproportionate to the nature of the dispute and the interests involved, then it will not achieve a fair and just result. [Emphasis added]

[26] The Defendant takes the position that there is no genuine issue requiring a trial. According to the Defendant, the Plaintiff’s claim for defamation and libel is frivolous, and it is plain and obvious that the Plaintiff’s action cannot succeed at trial. The Defendant asserts that the statements in question are true, and/or are entirely protected under qualified privilege/fair comment. The Defendant also argues that because the Plaintiff failed to give proper notice of the libel claim to the Defendant, the libel action is barred from proceeding.

[27] I am not satisfied that the Defendant’s statements made about the Plaintiff are true. On the contrary, the record before me suggests the contrary. Moreover, the defences of qualified privilege and fair comment relied on by the Defendant require that there be no malice. Malice is a question of fact and necessarily requires consideration of the context and the motives for the communication, as it may be inferred from direct or indirect evidence. It requires the trier of fact to look at the Defendant’s state of mind and undertake an assessment of credibility, which will often require viva voce evidence. See MacRae v. Santa at paras. 21-24.

[28] Given the context leading up to and surrounding the various statements in issue, malice is clearly an available inference on the evidence. Moreover, the Defendant’s counsel has refused to permit cross-examination of Ms. Dzambazov on her multiple affidavits. While cross-examination is not permitted under the Simplified Procedure, I am not in a position to properly assess the Defendant’s credibility on the facts of this case. In my view, this is hardly a case for summary judgment.

[29] Moreover, I do not accept that section 5(1) of the Libel and Slander Act, RSO 1990, c L. 12 (the “Act”) is an absolute bar to the Plaintiff’s libel claim in this case. There is no specific form of notice prescribed by the Act. In Grossman v. CFTO-TV Ltd. (1982), 39 O.R. (2d) 498, 139 D.L.R. (3d) 618. Cory J.A. explained the requirement of notice as follows:

The section stands as a condition precedent to the commencement of an action for libel. It constitutes an absolute bar. The purpose of the notice is to call the attention of the publishers to the alleged libelous matter. When it is received an an investigation can be made, and if the publisher deems it appropriate, a correction, a retraction or apology can be published. In this way the publisher can avoid or reduce the damages payable for the publication of a libelous statement.

An appropriate test to determine whether the notice complaining of a television broadcast is adequate might be as follows: Does the notice identify the plaintiff and fairly bring home to the publisher the matter complained of? Since the Act prescribes no particular form, the court in answering this question can consider all the relevant circumstances.

[30] In this case, the publisher was informed as soon as the Plaintiff discovered the Ad and the Ad was immediately retracted by the publisher.

[31] Section 8 of the Act also provides:

Publication of name of publisher, etc.

8 (1) No defendant in an action for a libel in a newspaper is entitled to the benefit of sections 5 and 6 unless the names of the proprietor and publisher and the address of publication are stated either at the head of the editorials or on the front page of the newspaper. R.S.O. 1990, c. L.12, s. 8 (1).

[32] In the circumstances here, the Defendant’s identity was not initially known to the Plaintiff as the source of the Ad. Even if s. 5 of the Act applied, a strict application of the provision as a bar to the Plaintiff’s claim in the circumstances here would be unwarranted.

[33] In any event, partial summary judgment in relation to the libel claim would be unwise in my view. The issue should be considered together with the other issues raised by the Plaintiff in its Claim. See Butera v. Chown, Cairns LLP, 2017 ONCA 783, [2017] O.J. No. 5267 (CA) at paras. 29-34.

[34] The motion for summary judgment is dismissed.

Justice C.F. de Sa

Released: August 20, 2018

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Colleen Andrews Plaintiff – and – Helen Dzambazov Defendant REASONS FOR DECISION Justice C.F. de Sa

Released: August 20, 2018