Verna Van Sickle wins defamation lawsuit in Archer Co-op matter

It’s a rare court victory against a member of the establishment at a St. Lawrence Neighbourhood residence notorious for evicting members and taking legal action against members on a frequent basis compared to other housing co-operatives.

That’s the view of Verna Van Sickle who was, between May 1979-Nov. 2012, a member of the David B. Archer Housing Co-operative at 158 The Esplanade.

She says there is an in-crowd at Archer who tend to run things and that she wasn’t always in accord with their aims.

Will Archer Co-op members have to foot the bill for this legal action?

Verna was very active in co-op affairs during her tenure there. Verna was on every committee and also on the board. On March 8, 2011, while she was taking care of her mother-in-law hip surgery in Ottawa, the board called a general membership meeting seeking to remove her.

She rushed back to Toronto and attended with a lawyer. She says the members voted 67% against the motion to remove her and claims the board refused to accept that. Verna eventually got fed up enough that she found a new residence in the neighbourhood where her life is a lot less contentious.

A comparatively recent member (a bit over a decade) on the board and in the co-op, Philip Conlon, had called her a thief orally and in print to board members and to selected insider members. It had to do with board documents that Verna was accused of taking. As a board member, Verna was within her rights to be in possession of board documents.

The board conducted secret meetings about her alleged theft of board docs, not inviting Verna.

At one of her last board meetings, there was a discussion with a member who had been in arrears and, says Verna, she found found $500-hour lawyer present. Verna says the co-op spends tens of thousands of dollars of members’ money on legal actions.

Mom defended her and took some docs pertaining to Jasmine. Phil said videos of Verna stealing the docs.

The judge excoriates Phil Conlon in a lengthy decision that awards Verna thousands in damages against Conlon. She says it’s likely the Archer members will foot that bill of his, though Conlon is shown to be absolutely wrong in the matter and the judge isn’t gentle in telling him so. It’s enough to turn your face red just reading the transcript.

This is the court transcript, after the application of possibly imperfect optical character recognition (OCR) software detailing Verna vs. Phil and wins bigtime.

Court file No. SC-115502/11

SUPERIOR COURT OF JUSTICE

SMALL CLAIMS COURT

BETWEEN:

VERNA VAN SICKLE

Plaintiff

v.

PHILIP CONLON

Defendant ********** REASONS FOR JUDGMENT

BEFORE DEPUTY JUDGE L. RICHARDSON

On July 29 , 2013, at TORONTO, Ontario **********

APPEARANCES ;

J. Kary Counsel for the Plaintiff

S. Polkinghorne and M. Kl~ppenstein Counsels for the Defendant ***********

AG 00lI7 (111’1.07-01)

Reasons for Judgment

L. Richardson, D. J.

July 29, 20B

REASONS FOR JUDGMENT

Richardson, D. J. (Ora11y) : THE COURT : This is the trial of Verna Van Sickle v. Philip Conlon. The trial of this action was heard on March 18th, 2013 and July 16th 2013 and Judgment was reserved until today.

The plaintiff is represented by Joseph Kary, solicitor and the defendant is r epresented by Murray Klippenstein and Silas PolkLnghorne, also solicitors. I have reviewed the pleadings, the evidence, the exhibits, the closing arguments and the book of authorities of each counsel.

The plaintiff sues the defendant for defamation. The defendant relies largely on the defence of qualified privilege and takes the position that the action should be dismissed. The plaintiff and defendant were members of a Co-op known as David B. Archer Housing Co-op which is located in the St. Lawrence neighbourhood in Toronto. The plaintiff and defendant had known each other for many years.

The plaintiff moved into the co-op in approximately 1979 and the defendant in approximately 1990. At the time of the alleged defamation, they were both members of the board of directors of the Co-op. The defendant was president at that time and the plaintiff was an elected member. The Co-op, I am told, consists of approximately 193 units consisting of townhouses and apartments. The plaintiff is a founding member of the Co-op. She served three terms as board member for two years each, the last term being in 2010. In addition, she served on various committees including maintenance, membership and social activities. She described it as a very close-knit community in which she was always very well known.

On February 10th, 2011, the board held a meeting and one of the items on the agenda was the proposed eviction of a Co-op member who did attend the meeting. Also present were eight board members legal counsel for the board and other staff who were taking minutes and had various administrative duties. At the meeting the plaintiff, Ms Van Sickle, took a position contrary to other members and contrary to the advice of the lawyer attending with respect to the eviction of the person who was being investigated. In many ways she acted as the woman’s advocate. It was her position that she was not represented and was not being treated fairly. It was later alleged by the defendant and others that he plaintiff removed documents from the meeting which the defendant deemed to be confidential.

I heard considerable evidence on this issue. The plaintiff adamantly denies wrongfully removing documents while others recall that she did. There was no written by-law in effect or in existence dealing with this issue.

The defendant Mr. Conlon was obviously very annoyed and angry with the plaintiff. Several days after the rneeting, on February 12th, the defendant sent an email to other members.

The heading of the email was, “Verna’ s theft of the documents from the meeting of Thursday night”. Also in the email the defendant, Mr. Conlon, was very critical of the plaintiff and accused her of regularly disrupting the meetings and behaviour which was not appropriate and suggesting that she had a history of improper conduct in those meetings.

The defendant’s position is that this email was confidential and not circulated. I do not agree. The very fact that it came to the plaintiff’ s attention is obvious proof that others knew of it as she did not receive a copy. I accept on this issue the evidence of the plaintiff that in the very close-knit community such as this Co-op, the email spread. The email had suggested that she disrupted the meeting, removed sensitive documents and that this conduct was characteristic of the plaintiff.

On February 17th, 2011 the defendant called a secret meeting of the directors of which the plaintiff was not notified although in actual fact she was entitled to be notified. It was suggested that there would be a meeting on March 8th to remove her from the board. On March ?, 2011 the plaintiff wrote to the defendant and delivered the letter through a third party which is marked as Exhibit 1, requesting an apology. The defendant did not respond. At the general membership meeting on March the 8th, 2011 the defendant repeated his allegations concerning the plaintiff’s removal of the documents.

The defendant’s motion however to remove her as a board member was defeated by approximately two to one. Notwithstanding this, the directors had since that time held other meetings of the board without notifying the plaintiff. The plaintiff is not a young woman and subsequently in 2012 left the Co-op to reside elsewhere. The plaintiff’s evidence, which I accept, was that she was treated by many with hostility and mistrust following these matters. She states that people were afraid of being associated with her following which she had a limited role in the board and this became very well nown. Her evidence was that these matters were extremely stressful to her.

The defendant testified that there were 11 people at the meeting and he was convinced that the plaintiff took confidential documents from the meeting against the wishes of the board. The defendant, Mr. Conlon, is educated, he has a B.A. in English. He did apologize to the plaintiff by letter dated April 15th , 2011 but some six weeks after she requested it and certainly after this litigation was started. The apology was only given to the same board members and the evidence was that it was not circulated in any way to the Co-op members as a whole. The defendant states that he should not have used the word theft and was aware that it was upsetting to the plaintiff.

These are the basic facts before me.

Reasons for Judgment

L. Richardson, D. J.

The first issue to decide is whether the statement in the February 12th letter was in fact defamatory. In the case of Color Your World Co-op v. CBe, Justice Abella of the Supreme Court of Canada states:

“A defamatory statement is one which has a tendency to injure the reputation of the person to whom it refers; which tends, that is to say, to lower him [or her] in the estimation of right-thinking members of society generally and in particular to cause him (or her) to be regarded with feelings of hatred, contempt, ridicule, fear, dislike, or disesteem. The statement is judged by the standard of an ordinary right-thinking member of society. Hence the test is an objective one…

I have no difficulty concluding on the evidence that the contents of the February 12th letter, particularly the use of the word theft, falls within the above definition of defamation. The defendant relies and I heard submissions by counsel on the dictionary definition of theft to persuade me to give it a less serious interpretation then what is alleged by the plaintiff. I do not agree. The word theft Lmplioo the commission of a crime. I refer to Lindon and Feldthusen, the authors of The Canadian Tort, well known authors, at page 777 and I quote,

Words imputing the commission of a crime are actionable without truth of special damage. Guilt must be alleged not merely suspicious and the crime must be a serious one, punishable by a prison term, there would need not necessarily be an indictable offence.

Thus the statement that “the plaintiff is a thief” will suffice whereas the mere assertion that the plaintiff has the defendant’s property will not. I am satisfied that using the word theft implies criminal activity and is of a most serious nature.

Having established that there was defamation, I now turn to two defences raised by the defendant. The first one is that of truth. There was a suggestion that referring to her actions as theft are true. Well I did hear conflicting evidence as to whether the plaintiff took confidential documents from the meeting, the conclusion that I may make with that regard is not relevant. It is my finding that no reasonable person including the defendant would regard her actions as a theft. The documents were from a meeting of a committee of which she was a member. And even if she did take them, there was no law which she had broken. The defendant admits this. To refer to this as theft is far overreaching and I find no truth to this allegation.

The most serious defence raised by the defendant is that of qualified privilege.

Qualified privilege applies when the publication is privileged when it is fairly made by a person in the discharge of a public or private duty whether legal or moral and in matters where his interest is concerned. However, as the word qualified indicates the extent of the privilege is limited. I do find that as a member and president of the Co-op board qualified privilege does apply to the extent where another member may be criticized to protect the dignity of the Co-op. However. the matter does not end there.

The defence of qualified privilege is defeated if malice exists and the law is clear that it is my function as the trier of fact to determine whether or not malice existed on the part of the defendant in using these words. I find that the words used by the defendant, that is, referring to ‘the plaintiff’ s conduct as “theft” were utterly beyond and disproportionate to the facts.

I find that the defendant intended to harm the plaintiff and had a total and reckless disregard for the truth. The defence of qualified privilege does not give the defendant an unfettered license to unjustly defame the plaintiff without boundaries or without accountability. In using the word “theft” to describe her behaviour he went too far and I find his conduct to be malicious. Also as a 20-odd-year member of the Co-op he ought to have known that in a very closed community of this sort, the statement would spread amongst the members. Counsel for the defendant relies on the British Columbia case of the DDI Diamonds with respect to the use of a criminal activity as part of qualified privilege. I have read the case and heard his submissions, however I do not agree with the defendant’s interpretation. At page 42 of the case, I quote:

He will be protected, even though his language should be violent or excessively strong if having regard to all the circumstances he might have reasonably and on honest grounds believed what he wrote or said was true.”

That is not the case which we have here. I am satisfied that Mr. Conlon knew that the allegation of theft was not true but used it in any event. I am advised that Mr. Conlon apologized. Dealing with the issue of the apology, I did not find him to be a credible witness. He did admit that the word theft was wrong and he did admit that caused harm to the plaintiff. But his apology was not publicized. It was not spread through out the Co-op and it was only to the people on the board. I believe the apology was not sincere and it was only passed on after the litigation to attempt to protect his legal position.

I find that the plaintiff went through an ordeal which she ought not to have endured. I believe that her reputation was harmed and that she was emotionally damaged by the conduct and she was clearly looked at in a much different light by some of her neighbours. I find her to be an honest woman and very sensitive and very proud of her commitments and duties and contributions to the Co-op.

In summary, I find that she was defamed and for reasons given I find that the defence of qualified privilege does not apply because of what to me is obvious malice on the part of the defendant. I have reviewed some of the precedents in this matter and it is my judgment that an award of $7,500 for defamation is appropriate. Having said that I’ll hear any submissions as to costs if you are ready to give them.

MR. KARY : Certainly. Well, the limit set out on costs in the legislation is related to the amount of claimed, 15 per cent the amount claimed.

THE COURT : I am not the guy to try that on sir…

MR. KARY : I am talking of maximum….

THE COURT :… that means everybody is going to claim 25, 000.

MR. KARY: Yeah.

THE COURT : No, let’s bypass that, okay?

MR. KARY: Okay. THE COURT : You’ve received an award of $7, 500. I am not going to base costs on $25, 000.

MR. KARRY : No, I appreciate that. I am talking about what the limits on your jurisdiction are. So, given that, the issue is not just money but also vindication. So, the lawsuit has to do not just with the amount of dollars but also with the fact that this justifies and helps in….

THE COURT : Sorry?

MR. KARY: It, it’s not just money, it’s also vindication.

THE COURT ; Well I hope I have given her that.

MR. KARY : Yes, so….

THE COURT : But what I am asking you is what you want by way of money. What you are suggesting for costs. I have awarded her $7,500…

MR. KARY: Mm-hmm.

THE COURT :… and I did find that she was unjustly defamed…

MR. KARY: Yes.

THE COURT:… but all I am asking you is now is what costs award do you submit is appropriate.

MR. KARY ; I would submit that $3,500 is appropriate. This is.. __

THE COURT: Were any offers exchanged by either of you?

MR. KARY: There were offers but none that were, none that would be relevant in the circumstances.

MR. POLKINGHORNE : Your Honour, there was an offer recently made of $2,000.

THE COURT : By whom?

MR. POLKINGHORNE : By the defendant to the plaintiff.

MR. KARY : It also includes certain conditions such as a confidentiality clause….

THE COURT: Okay, okay. He offered $2,000, you did not offer anything?

MR. KARY : No. Well there was an offer that….

THE COURT : How do you come to $3,500?

MR. KARY: This is a, we had two attendances before you to argue the case, three including today…

THE COURT: It’s called a day and half trial. I don’t know what you call it.

MR. KARY : A day and half trial, three settlement conferences, in each of which…

THE COURT: sir, I am not giving costs of the settlement conference.

MR. KARY: Mm-hmm

THE COURT: They were dealt with by the settlement conference deputy judge, okay. I want to know how you come up with $3, 500 for an award of $7,500 is what all I’m asking you.

MR. KARY : The award has to look at not just what was claimed but also the significance of the issues involved and….

THE COURT: So, I should ignore the rules of the Small Claims Court in awarding costs? MR. KARY: Nothing in the rules of the Small Claims Court say that you cannot award those costs as far as I know.

THE COURT: But I have to have very special reasons…

MR. KARY: Yes.

THE COURT:… to, what would 15 per cent of 7,500 be?

MR. KARY: Would be 750 plus 375…

THE COURT : Anybody have a calculator?

MR. KAR¥:… abou~ 1, 200, 1, 125.

THE COURT : How much?

MR. KARY ; One thousand one hundred and twenty-five.

THE COURT : What are your disbursements?

MR. KARY: The disbursements, there is $50 for the pleadings, about $30 for photocopying.

THE COURT: And the claim?

MR. KAR’i: Yes.

THE COURT: Give me a number.

MR. KARY: Sorry, for the claim?

THE COURT: Hundred and seventy-five…

MR. KARY: Yes.

THE COURT: Plus what?

MR. KARY: Hundred and seventy-five plus fifty dollars for preparation of pleadings which is allowed under the rules.

THE COURT: And $30 for photocopying?

MR. KARY: Yes.

THE COURT : So that works out to $255 disbursements. Okay counsel what do you have to say about costs?

MR. POLKINGHORNE : Your Honour, if I may make some brief submissions as to costs. I would submit that there should be a minimal cost awarded in this case. The allegations were….

THE COURT : Could you give me a number? Minimal means a lot less….

MR. POLKINGHORNE: I would, I would submit that S500 would be a reasonable cost award due to the….

THE COURT : How do you come up with that?

MR. POLKINGHORNE : Your Honour, the success in this case was, was partial, in that the plaintiff alleged a number of instances of defamation which were not proven including at that subsequent general member’s meeting. You took issue with the, and found defamation with regard to only the email. The plaintiff also claimed for punitive damages which were, which were not found. would also submit that the plaintiff made the trial of this matter needlessly complex by bringing evidence with regard to past allegations against the defendant and with regard to surrounding events which were, which were not proven as defamatory.

THE COURT : Well, thank you.

MR. POLKINGHORNE : Thank you.

THE COURT: Sir? There shall be Judgment for the plaintiff in the amount of $7,500. When should interest run from?

MR. KARY: I would say from today, Your Honour.

THE COURT : Sorry?

MR. KARY :… I would say from today, Your Honour.

THE COURT : There should be post judgment interest at three per cent, I believe.

MR. POLKINGHORNE: Your Honour, if I may ask for, my client is a … is a man of fairly modest means, if I could ask for an extended period of time to pay that.

THE COURT: I am not in a position to. I do not know anything about his means.

MR. POLKINGHORNE: I am not sure what the court’s usual practice is but if we may have 90 days to 120 days….

THE COURT: I would think that Ms. Van Sickle is a reasonable person. If you want to go outside after the judgment and work out a plan, I am sure that Ms. Van Sickle and her counsel would be reasonable as long as the payment plan is not too far extended.

MR. POLKINGHORNE: Thank you, Your Honour.

THE COURT: I mean he has hired you guys, two lawyers on this case, he cannot be that broke. But all right. I am not going to deal with it. The defendant shall pay the plaintiff. I noticed, as far as I am concerned, the plaintiff was largely successful and I do find that she was badly hurt by what went on here. I am going to award costs in the amount of $1,500 plus disbursements which is $1,725.