IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

Lane v. Board of School Trustees of

School District 68 (Nanaimo–Ladysmith),

 

2006 BCSC 129

Date: 20060126
Docket: S38598
Registry: Nanaimo

Between:

Carola Lane

Plaintiff

And

Board of School Trustees of School District 68
(Nanaimo-Ladysmith); Gerald Montgomery; June
Harrison; Janet Cowling and Terry-Lynn Saunders

Defendants


Before: The Honourable Mr. Justice Tysoe

 Reasons for Judgment


Counsel for the Plaintiff until July 4, 2005:

Rhys Davies, Q.C.

Carola Lane appearing on her own behalf
from September 12, 2005

 

Counsel for the Defendants:

David A. Gooderham
and Karen R. Zimmer 

Dates and place of trial:

April 4 - 7, 11 - 15, 18 - 20, 25 - 29,
May 2 - 6, 9 - 13, 16 - 20, 25 - 27, 30, 31, June 1 - 3, 6 - 10, 13 - 17,
20 - 24, 27 - 30, July 4, September 12 - 14, 20 - 23, 26 - 29, October

3 - 7, 11 - 14, 17 - 21, 24 - 28, 31, November 1 - 4, 7 - 10, 14 - 17

and December 15 - 16, 2005
Nanaimo, B.C.

TABLE OF CONTENTS

Heading


INTRODUCTION


1


GENERAL BACKGROUND


3


ISSUES


40


DISCUSSION



 

(a) Was the Statement Defamatory:


42

(b) Was there Qualified Privilege:

84

(c) Was the Statement Fair Comment:

109

(d) Was the Statement Made With Malice:

125

(e) Was the Statement Substantially True:

164

(f) Wallace Damages:

185


CONCLUSION


195

INTRODUCTION

[1]                The Plaintiff, Carola Lane, was the Superintendent of the School Board (the “School Board”) for School District 68 (Nanaimo-Ladysmith) (“School District 68” or the “District”) from January 4, 1999 until February 10, 2003, when her employment as Superintendent of the School Board was terminated.  In this action, Ms. Lane sues in defamation with respect to various statements made by the Defendants in the two month period leading up to and including the date of her termination.  She is also claiming damages with respect to the manner of her termination.  Ms. Lane is looking for total damages in excess of the $1.6 million award in the defamation case of Hill v. Church of Scientology, [1995] 2 S.C.R. 1130, together with damages equal to six months’ salary in relation to the manner of termination of her employment.

[2]                I heard considerable evidence regarding events which occurred during Ms. Lane’s tenure as Superintendent.  This was a result of the Defendants pleading that they were justified in making some of the allegedly defamatory statements because they were true and the Plaintiff pleading that the Defendants acted with malice in making the allegedly defamatory statements.  I do not propose to set out the evidence in detail except to the extent that it relates to the making of the statements in question.  I will summarize the facts providing the general background of this matter and I will refer to the detailed evidence only to the extent that it becomes necessary to do so.

GENERAL BACKGROUND

[3]                Ms. Lane was raised in Ontario and entered the education field in that province.  She began as a teacher and then worked for the Hamilton Board of Education.  She was a principal of a school for a number of years and eventually became the Director of Education for the Peterborough County Board of Education.  She next joined the Ontario Ministry of Education as an assistant deputy minister and then moved to a similar position in the Ontario Ministry of Labour.

[4]                Ms. Lane left the civil service when the government of the time was defeated, and she became the Director of Education for the Ottawa Board of Education.  After the Ottawa and Carlton Boards of Education were merged in 1998, Ms. Lane was named as the interim Director of Education for the merged Board.  There was then a competition for the permanent position and Ms. Lane was not successful in obtaining it.

[5]                Shortly after Ms. Lane lost her position with the Ottawa/Carlton Board of Education, she was informed by a friend living in Victoria, B.C., that the School Board was searching for a new Superintendent.  Ms. Lane applied for the position and came to Nanaimo for the interviewing process.  She met with all of the Trustees of School District 68’s Board of Trustees (the Board of Trustees is the School Board, which by virtue of s. 65 of the School Act, R.S.B.C. 1996, c. 412, is a body corporate, but I will refer to it as the “Board of Trustees” or the “Board” when referring to the Trustees collectively).  She formed the impression that the Trustees shared her views on many matters involving student learning and the administration of education.

[6]                On the same day that the interviews were completed, Ms. Lane was told that she was the successful candidate and was appointed Superintendent of the School Board effective January 4, 1999.  Ms. Lane and the School Board entered into a written employment contract which provided, among other things, that Ms. Lane’s employment could be terminated without cause upon an affirmative vote of two-thirds of all members of the Board of Trustees, provided that she was first given the opportunity to attend a meeting of the Board of Trustees where the termination of her employment was to be considered.  The School Board was required by the contract to notify Ms. Lane in writing of a decision to terminate her employment.  The contract also provided that, if her employment was terminated without cause, the School Board was required to offer her another position in School District 68 and that, if the other position was not accepted by Ms. Lane, the Board, in its discretion, could either provide Ms. Lane with 12 months’ notice of termination or continue to pay her salary and benefits for a period of 12 months.

[7]                As I indicated above, I will not be detailing the events that occurred during Ms. Lane’s tenure as Superintendent except for the events leading up to the making of the allegedly defamatory statements and Ms. Lane’s termination.  Suffice it to say at this stage that Ms. Lane had disagreements with some of the senior staff employed by School Board and some of the Trustees.  A fairly clear division in the Board of Trustees developed in the period between the trustee elections in November 1999 and the trustee elections in November 2002.  When there were split votes, five of the nine Trustees generally voted one way while the remaining four Trustees, including the Defendants, June Harrison, Terry-Lynn Saunders and Janet Cowling, (“Trustee Harrison”, “Trustee Saunders” and “Trustee Cowling”) generally voted the other way.

[8]                One of the values important to Ms. Lane was equity, or equality among students.  An issue raised from time to time within School District 68 was the fact that not all the students were Christians and, hence, did not celebrate Christmas in the religious sense.  On October 10, 2002, an individual who, out of privacy considerations, was referred to as “Mr. Jones” during the trial, sent an e-mail to Ms. Lane regarding Christmas concerts within the District.  The e-mail made reference to the requirement of s. 76 of the School Act, which provides that all schools must be conducted on strictly secular and non-sectarian principles and that no religious dogma or creed is to be taught in schools.  Ms. Lane replied to Mr. Jones that she would work with the District’s Management Committee and school principals to ensure that Christmas concerts would be renamed.

[9]                Ms. Lane raised the issue at a meeting of the School Board’s Management Committee held on October 21, 2002.  The members of the Management Committee, which at the time included six principals, agreed with the view of Ms. Lane, and it was decided that the Director of Communications, Ms. Reimer, would draft a notice to all of the schools in School District 68 and circulate the draft among the members of the Management Committee for comments.  Ms. Lane did not consider it necessary to refer the matter to the Board of Trustees.  After comments were incorporated into the notice, it was sent to all principals and vice-principals within School District 68 by way of an e-mail from Ms. Lane dated November 1, 2002 (the “Christmas Notice” or the “Notice”).  The Notice spoke about diversity and the need to be sensitive to ensure that no student felt excluded.  It then set out the guidelines to be followed:

Seasonal events are appropriate, but they should not be labeled “Christmas concert, etc.”

Religious elements (such as a Nativity scene) should only be included if the event is celebrating a variety of winter religious observances.

Schools should recognize that in addition to having students from a variety of religious backgrounds there are students whose families’ choice is to not have ties with any organized religion.

The Trustees were sent copies of the Christmas Notice.  Trustee Harrison provided a copy of the Notice to the Nanaimo Daily News.  The Notice created a furor within the community, beginning with an article published in the Nanaimo Daily News on November 12, 2002.  It subsequently became national news.  Ms. Lane received numerous negative communications from the community, including several of a threatening nature.

[10]           Ms. Lane had been interviewed for the November 12 article, which stated that in order to avoid discrimination in schools, the District’s Management Committee had set a guideline that seasonal festivities should not be labeled “Christmas”.  Ms. Lane was quoted as stating that Christian traditions were not being excluded from the schools, but that they should be included only among other traditions practiced by students.

[11]           Trustee Harrison wrote a letter to the Nanaimo Daily News following publication of the November 12 article.  It was published, with some edits, in the November 18 edition of the Nanaimo Daily News.  The published letter included the following paragraphs:

I think it’s important for the community to know that the order forbidding Christmas Concerts at our schools was not an order from the Board of Trustees.  It was issued by our Superintendent, CEO Lane without any direction from the Board.  This is most regrettable and not at all acceptable to me.

Personally, I believe that it is the Board of elected Trustees who are called upon to represent community practices and values, but we were completely ignored in this matter.  Our rule of law in our federal and provincial courts, our parliament systems, along with most of our great universities and hospitals were founded on Christian principles.  Those who were born in Canada and those lucky enough to choose Canada pledge allegiance to these founding principles.

I find it very distressing that in the name of extreme political correctness, this order to turn away from the ancient tradition of the school Christmas concert unacceptable.

For God’s sake, it’s just a concert and no single child is excluded from the fun.

It’s not about teaching religion.  I fully expect that from now on, all other faiths will receive a similar warning as their chosen date for celebration approaches.  I refer to Islam …

I don’t think there was any need to be so heavy-handed about such innocent school events as the beloved Christmas concert and I am distressed that we as trustees were not consulted.

(the “First Harrison Statement”)

Ms. Lane alleges that this letter was defamatory because it was understood to mean that she had forbidden events to celebrate the festive season, that she had exceeded her authority as Superintendent and that she had acted inappropriately and with poor judgment, leading one to conclude that she was mean spirited, incompetent and unsuitable for the position of Superintendent.

[12]           A new Board of Trustees was elected on November 16, 2002 and they were sworn into office on December 2, 2002.  Only four of the existing Trustees were re-elected and these included Trustees Harrison, Cowling and Saunders.  Two of Ms. Lane’s previous supporters did not stand for re-election and only one of her remaining three supporters, Mr. Allen, (“Trustee Allen”) was re-elected.  The Defendant, Gerald Montgomery, was elected and he was appointed by the Board of Trustees to be its Chair (“Chair Montgomery”).

[13]           The Christmas Notice was the subject of a special public meeting of the new Board of Trustees held on December 4, 2002.  Ms. Lane had several communications during November with Mr. Jones, during which he told Ms. Lane that he had had discussions with the Canadian Jewish Congress and that it shared his view, as a lawyer, that calling seasonal events “Christmas concerts” was clearly illegal.  Mr. Jones sent Ms. Lane a copy of the decision of the B.C. Court of Appeal in Chamberlain v. Surrey School District No. 36, 2000 BCCA 519 and pointed out paragraph 31 of the decision, which stated that religious establishment or indoctrination associated with any particular religion in public schools is precluded.  After the Christmas Notice had generated significant publicity, Mr. Jones sent Ms. Lane an e-mail on November 21, 2002 suggesting that the policy stated in the  Notice be suspended pending the decision of the Supreme Court of Canada in the Chamberlain case.  Ms. Lane also received a copy of the Chamberlain decision and two similar decisions of the Ontario Court of Appeal from the legal counsel for the School Board, who gave Ms. Lane the impression that the approach directed by the Christmas Notice was correct.  Ms. Lane also spoke with a senior official in the Ministry of Education shortly before the December 4 meeting, and he agreed with the contents of the Christmas Notice and offered to have the Deputy Minister of Education give a statement of support in favour of Ms. Lane’s position.  She did not pass on this information to the Trustees.

[14]           Ms. Lane received a series of four letters from the Canadian Jewish Congress in the week leading up to the December 4 special public meeting, and she circulated copies of these letters to the Trustees.  The first two letters, dated November 29 and December 2, were generally supportive of the Christmas Notice and were non-confrontational.  The third letter, dated December 3, stated that representatives of the Canadian Jewish Congress would have liked to attend the December 4 meeting but that members of the local Jewish community were afraid to attend the meeting for fear of their personal safety.  The fourth letter, which was received during the afternoon of December 4, stated that the Canadian Jewish Congress had received legal advice regarding the celebration of Christmas concerts and that its contention was that the use of the word “Christmas” in describing a celebration for the entire school population was in contravention of s. 76 of the School Act.

[15]           Immediately prior to the special public meeting, all of the Trustees attended a meeting of the Board’s Human Relations Committee.  At the end of the meeting, Chair Montgomery asked the Trustees and Ms. Lane to stay in the meeting room.  He stated that he had talked to a number of the Trustees and that he had a proposal; namely, that two motions would be introduced at the special public meeting.  The first motion proposed the formation of an ad hoc committee of the Board, which would consult with the community regarding the elimination of references to Christmas and then make a recommendation to the Board.  The second motion proposed a recommendation to schools in School District 68 that they continue with their traditional Christmas celebrations, with continuing respect for a diversity of religious and cultural values.

[16]           At the commencement of the special public meeting, Chair Montgomery announced that there was a proposal or plan to deal with the issue regarding Christmas concerts.  He stated there would be no debate involving the public during the meeting.  A number of Trustees made statements on the issue, including Trustee Cowling who said the following:

We have more than enough intelligence and experience on the part of our educators in this district to handle this in a very appropriate manner.  And I think unilateral and inflexible directives to the staff and students of this district do not serve us well.

(the “Cowling Statement”)

After the Trustees had finished making their statements, the two motions were passed.

[17]           The Cowling Statement was published in the December 9, 2002 edition of the Nanaimo News Bulletin in a story dealing with the topic of Christmas concerts in schools.  Ms. Lane alleges that the Cowling Statement was defamatory because the words were understood to mean that Ms. Lane had exceeded her authority as Superintendent and had acted inappropriately and with poor judgment, leading one to conclude that she was incompetent and unsuitable for the position of Superintendent.

[18]           On December 5, Ms. Lane sent a copy of the letter from the Canadian Jewish Congress to all principals (and vice-principals) in School District 68.  She testified that she sent them the letter because she understood the second motion passed by the Board of Trustees on December 4 to give each principal the responsibility to deal with seasonal celebrations and she felt it important for the principals to have all available information.  Some of the Trustees, including Chair Montgomery, felt that this action was contrary to the motions passed by the Board at the special public meeting.

[19]           On December 9, Chair Montgomery came to Ms. Lane’s office and told her that she was not to speak about the Christmas concerts issue with anyone and that all inquiries should be directed to Mr. Dale, the Trustee chairing the ad hoc committee looking into the issue.  He also told her that he was going to be speaking with a reporter from the National Post about the issue.

[20]           During his interview with the National Post reporter, Chair Montgomery made the following statements, which were published in the December 12 edition of the National Post:

I don’t want to put too tough a face on it because I don’t want to embarrass our superintendent here.  I’ll just say it was a surprise and had not gone through the board.  However, the board had to deal with it and we did.

(the “Montgomery Statement”)

Ms. Lane alleges that the Montgomery Statement was defamatory because the words were understood to mean that she had made an error and exceeded her authority, leading one to conclude that she was incompetent and unsuitable for the position of Superintendent.

[21]               During the afternoon of December 9, Chair Montgomery told Ms. Lane that there was going to be a special closed Board meeting on December 11 but that she did not need to attend because it involved a personnel matter.  Ms. Lane asked him if the meeting was about her, and he told her that it was.  She told Chair Montgomery that she would like the opportunity to address the Board and he assured her that she would be given that opportunity.  There was some discussion about coming to a settlement of the matter.  Ms. Lane testified that it was her sense from the conversation that the Board was going to terminate her employment.

[22]           The Board passed two motions at its December 11 meeting.  The first motion was to give Ms. Lane notice pursuant to her employment contract that (i) the Board was considering her dismissal without cause as the Board wished a change in leadership and to establish a new direction for School District 68 and (ii) Ms. Lane would have an opportunity to meet with the Board before it made its final decision.  The second motion authorized the Chair and Vice-Chair of the Board to have discussions with Ms. Lane with the view of achieving an amicable resolution with her.  Seven of the nine Trustees voted in favour of both motions.  The Trustees voting against the motions were Trustee Allen and a newly elected trustee, Ms. Polling (“Trustee Polling”).

[23]           On the following afternoon, Chair Montgomery met with Ms. Lane and told her that the Board had decided to initiate the dismissal without cause process under her contract.  He gave her a letter that quoted the first of the motions passed at the previous night’s meeting and stated that in accordance with her contract she would be given an opportunity to meet with the Board.  The letter proposed that the meeting take place on December 19.  After contacting legal counsel, Ms. Lane requested that the meeting be put off until mid-January and subsequently requested that the meeting be put off until January 28, 2003.

[24]           On January 14, counsel for Ms. Lane wrote to counsel for the Board confirming the request to reschedule the meeting with the Board for January 28.  The letter went on to state that Ms. Lane’s concerns had nothing to do with her employment contract, but rather, were about the damages to her reputation and emotional distress resulting from conduct of certain Trustees and the Board since November.  The letter asserted that the damage was continuing because the Christmas concerts issue continued to be front and centre as a result of the formation of the ad hoc committee and because Chair Montgomery had instructed Ms. Lane not to speak to anyone about the issue.

[25]           Commencing on approximately January 22, the media began to speculate as to whether Ms. Lane’s job was in jeopardy.  Most of the members of the Board declined to comment on the basis that it was a personnel matter, but it was obvious that one or more of the Trustees were communicating, directly or indirectly, with the media.

[26]           On January 27 or the morning of January 28, counsel for Ms. Lane wrote to the Board’s counsel and suggested that a termination of Ms. Lane’s employment at that time was not fair or appropriate because such a termination would increase the scope of damages to her person and reputation resulting from the handling of the Christmas concerts issue by certain Trustees and the Board.

[27]           The Board of Trustees held its meeting on January 28, and Ms. Lane read a prepared statement at the meeting.  Among other things, she said that the issue of her termination was inextricably wound up with the Christmas concerts issue and that she was interested in knowing why the Board was considering the termination of her employment at that time.  Ms. Lane departed the meeting after approximately 20 minutes, following which the Board passed two motions.  The first motion recommended that all discussions relating to Ms. Lane’s employment be kept in strict confidence and that no statements on the subject be made to the public by any of the Trustees except the Chair and the Board’s legal counsel.  The second motion provided that (i) Ms. Lane be advised that the Board considered it to be in the best interests of School District 68 to have a change in leadership, (ii) the Chair of the Board and the Board’s legal counsel were authorized to have discussions with Ms. Lane and her legal counsel towards an amicable resolution with Ms. Lane, (iii) any proposed resolution with Ms. Lane be referred back to the Board and (iv) if a resolution was not achieved in 10 days, the matter be referred back to the Board for final decision.  The first motion was carried unanimously while the second motion had two dissenters, Trustees Allen and Polling.

[28]           On the following day, Chair Montgomery left a letter in an envelope on Ms. Lane’s desk in her absence.  The letter quoted the second of the resolutions passed by the Board on the previous evening and asked her to advise as to whether she wished to engage in the discussion referred to in the resolution, either directly or through legal counsel.

[29]           On January 30 and 31, Trustee Allen and Trustee Polling respectively wrote letters to the Board stating that they did not agree with the decision to fire Ms. Lane and that, despite the Board motion passed on January 28 to keep all discussions about Ms. Lane’s employment strictly confidential, they intended to speak out.  Trustees Allen and Polling did go to the media, and several newspapers published stories at the end of January and the beginning of February regarding the possible termination of Ms. Lane.  The letters written to the Board by Trustees Allen and Polling were published in the February 4 edition of the Nanaimo Daily News.

[30]           Trustees Harrison and Saunders, among others, were interviewed by reporters with Nanaimo newspapers in the following days.  Trustee Harrison’s comments were published in the February 4 edition of the Nanaimo Daily News:

While unable to discuss Polling’s concerns around plans to terminate Superintendent Carola Lane as it’s a personnel matter, Harrison assured the district is in good hands with the current board, chaired by Gerry Montgomery.

‘The education of children in the district has been, and continues to be, in the good hands of the principals and teachers’, she said.

Harrison said she also has concerns about the district’s budget but her concerns stem from the previous school board’s ‘whittling away’ at the district’s administrative structure.

‘There’s only one qualified person in the district to prepare the budget for 2003-04, and that’s our secretary-treasurer David Green’, she said.

‘A mammoth job has been put into the hands of one man.’

Ms. Lane alleges that the above words spoken by Trustee Harrison (the “Second Harrison Statement”) were defamatory because in their natural and ordinary meaning or, alternatively, by true innuendo, the words conveyed the message that Ms. Lane was neither qualified to nor capable of managing the education of children or preparing the School District’s budget.

[31]           Trustee Saunders’ statements were reproduced in the following passage published in the February 6 edition of the Nanaimo News Bulletin:

Polling won’t say why some trustees are anxious to replace Lane.

‘I personally see no evidence to show me that the superintendent has not done her job,’ says Polling.

But trustee Terry-Lynn Saunders says Polling, who was elected in November, has not been a trustee long enough to form such an opinion.  And she suggests a quick rounding up of news reports dating back to 1999 would counter Polling’s statement.

The only thing I would say to you is go back to your records.’ says Saunders.

‘Go back to the last four years.  You know what went on in this district.

Since Lane was hired in 1999, the school district has undergone significant management restructuring.

The changes began in late 2000 when the district’s three assistant superintendent positions were replaced with a deputy superintendent and three directors of education.

Subsequent restructuring saw those new positions eliminated and most of the district’s senior management removed.

And while Lane’s critics blame her for the low staff morale caused by the restructuring, trustee Allen says they’re pointing fingers in the wrong direction.

Ms. Lane alleges that the italicized words spoken by Trustee Saunders (the “Saunders Statement”) were defamatory because they were understood to mean that Ms. Lane had caused poor morale among the School District’s staff and had done a bad job as Superintendent, leading one to conclude that she was incompetent.

[32]           The Board’s legal counsel wrote to Ms. Lane’s counsel on February 4, 2003.  The letter noted that the Board had not yet received a proposal for an amicable resolution beyond an initial framework which had been proposed by Ms. Lane’s counsel in December 2003.  The letter also noted that the Board had not yet received a form of letter to the public previously discussed between counsel clarifying the Christmas concerts issue.  Counsel for the Board enclosed a statement that the Board had decided to issue without further delay in view of revived media interest.  The statement indicated that Ms. Lane had acted appropriately in referring the issue of the Christmas concerts to the Management Committee.  It also contained the following form of apology:

A number of trustees commented on the memorandum.  Some trustees agreed with the approach outlined in the memorandum, others disagreed with the guidelines in the memorandum or took issue with the lack of trustee involvement on such a sensitive matter.  In taking issue with the directive, neither the Board of Trustees nor any of its members intended to suggest that the Superintendent had acted outside her authority in providing direction to staff nor did they intend to suggest that her direction on the legal obligations of schools to recognize the religious and cultural diversity of the school population was in any way misguided.  If comments made by members of the Board of Trustees were understood by members of the public to mean that the Superintendent acted beyond her authority, the Board wishes to correct that and offer its unqualified apology.  She acted in accordance with her responsibilities as Superintendent of Schools.

Chair Montgomery issued the statement on behalf of the Board on February 5.  The last three sentences quoted above were contained in an article in the February 6 edition of the Nanaimo Daily News, and the statement was also published, in whole or in part, in other newspapers.

[33]           The Board of Trustees met in the afternoon of February 8, which was a Saturday, to consider the termination of Ms. Lane’s employment.  Trustees Allen and Polling left in the middle of the meeting, stating that they would not be in the room when a motion to terminate her employment was being passed.  The remaining seven Trustees unanimously passed a resolution for Ms. Lane to be dismissed without cause in accordance with the provisions of her employment contract.  The Board also resolved to offer Ms. Lane a position as a principal in School District 68 and to pay her salary and benefits for 12 months if she did not accept the offer.

[34]           Ms. Lane returned to her residence during the evening of February 8 and heard a message on her telephone’s message machine from Chair Montgomery requesting her to call him regarding her employment status.  She was unsuccessful in returning his call at his home during the following morning and they spoke early in the following afternoon.  Chair Montgomery told her that the Board had decided to terminate her position as Superintendent and that the Board hoped that she would continue with the District in the capacity as a school principal but, if not, she would be paid severance in accordance with her contract.  Chair Montgomery said that the termination would be effective the next day, Monday, and that she should not come to the office on the next day.  He offered to talk further that afternoon, either in person or by phone.  Ms. Lane replied that she was surprised because she thought that they were negotiating and her lawyer had not heard from the Board’s lawyer.

[35]           On February 10, Chair Montgomery wrote a letter to Ms. Lane confirming what he had told her on the previous day and thanking her for her contribution as Superintendent over the past four years (although the letter was not delivered until the end of that week).  On the same day, the Board issued a press release announcing Ms. Lane’s termination, which read as follows:

The Board of Trustees of the School District 68 (Nanaimo-Ladysmith) announced today that the search will begin for a new Superintendent and CEO.

The current Superintendent Carola Lane is being offered another position within the District and former Deputy Superintendent, Rick Borelli, has agreed to act as interim Superintendent, pending approval by the Board.

Board Chair Gerry Montgomery said the school district appreciates the contribution Lane has made during the last four years and he hopes the district will be able to continue to draw on her knowledge and experience.

He added, however, that the district is at a crossroads and trustees felt the need for new leadership to deal with issues such as financial pressures and staff morale.

‘Going forward we need to bring stability and a new spirit of cooperation to the district,’ Montgomery said.  ‘We need to pull together the support of parents, teachers, principals, support staff and the district administration.’

Montgomery added that the Ministry of Education and the BC School Trustees Association have agreed to help the district find ways to improve the delivery of education services and provide more support to schools.

The appointment of Borelli as Interim Superintendent minimizes any financial burden on the District.  His position was eliminated by reorganization last year and the District has been under an obligation to maintain a salary.

Lane’s contract is being terminated without cause, which means that she has the right to refuse reassignment to another District position.  If that happens, she will be paid twelve months severance in accordance with her employment contract.

Ms. Lane alleges that the italized words in the above press release (the “Board Statement”) were defamatory because they were understood to mean that she had caused low morale, a lack of cooperation and a lack of stability during her period as Superintendent.

[36]           On the following day, Ms. Lane received a telephone call from the Secretary-Treasurer of the School Board, requesting that she clear out her office and return the property in her possession belonging to the School Board.  Ms. Lane endeavoured to persuade him to allow her to retain her laptop computer so that she could leave her e-mails in an orderly fashion, but he told her that this was not necessary.  After hanging up the phone, Ms. Lane became short of breath and experienced pain shooting up one of her arms.  She thought that she was having a heart attack but it turned out to be a panic attack.  While she thought she was having a heart attack, Ms. Lane phoned the School Board’s office, and the Secretary-Treasurer and her former executive assistant calmed her down and made arrangements for her son to come to her residence and take her to the doctor.  The contents of Ms. Lane’s office were boxed up by her former executive assistant and two others, and Ms. Lane and her son took the boxes away on the following evening.

[37]           Ms. Lane decided not to accept the offer to remain as a principal in School District 68.  She testified that, although she would love to be a principal because it is the best job in a school district, she did not believe that the offer was sincere and she did not feel that she would be treated fairly in School District 68, particularly in light of the fact that Mr. Borelli had been made the interim Superintendent by the Board of Trustees.  Mr. Borelli had been the Deputy Superintendent, a position eliminated in the spring of 2002 as part of the School Board’s 2002 – 2003 budget process.  Ms. Lane continued to be paid her salary and benefits as Superintendent for a period of 12 months following the termination of her employment.

[38]           Ms. Lane testified that she was very depressed in the months following February 2003.  Public education had been her life and she felt that she wasn’t competent any more.  She had further panic attacks up to June 2003 and she took 10 counselling sessions.

[39]           Ms. Lane began looking for new employment in the spring of 2003 and continued looking until June 2004, when she began devoting all of the time to this litigation.  She was “short-listed” for the position of Superintendent for the Vancouver School District in April 2003, but she was not successful in obtaining the position.  She unsuccessfully applied for several other superintendent positions across Canada, as well as for a couple of other positions.  Ms. Lane believes that she has been out of the education sector for too long in order to find a job in education, and she plans to begin looking for a job outside the education sector when this litigation is over.

ISSUES

[40]           The principal issues to be determined in this litigation are whether Ms. Lane is entitled to (i) damages for defamation in respect of the First Harrison Statement, the Cowling Statement, the Montgomery Statement, the Second Harrison Statement, the Saunders Statement and the Board Statement (collectively called the “Statements” and individually referred to as a “Statement”) and (ii) damages in respect of the manner of the termination of her employment pursuant to Wallace v. United Grain Growers Ltd., [1997] 3 S.C.R. 701 (commonly called “Wallace damages”).  As a result of the various defences raised by the Defendants and potential answers to those defences, there are a number of sub-issues with respect to the Statements, as follows:

(a)        was the Statement defamatory?

(b)        was the Statement published on an occasion of qualified privilege?

(c)        was the Statement a fair comment on a matter of public interest?

(d)        was the Statement made with malice?

(e)        was the Statement justified in the sense of being substantially true?

Rather than dealing with all of the sub-issues in respect of each Statement at one time, I propose to discuss each sub-issue as it pertains to all of the Statements to which it is germane.  In this way, I will hopefully minimize repetition of my comments.

[41]           If Ms. Lane is entitled to an award of damages, there will be issues with respect to the extent of those damages.  In addition to the Wallace damages, Ms. Lane is seeking special damages, general damages, aggravated damages and punitive damages.

DISCUSSION

(a) Was the Statement Defamatory?

(i) Introduction

[42]           The Defendants take the position that none of the Statements were defamatory of Ms. Lane.

[43]           The following description of a defamatory statement, contained in Salmon on Torts (17th ed., 1977, at pp. 139-140), was approved by the B.C. Court of Appeal in Vander Zalm v. Times Publishers, Bierman, McLintrick and Underhill (1980), 18 B.C.L.R. 210  (C.A.) at p. 212:

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 in the estimation of right-thinking members of society generally and in particular to cause him to be regarded with feelings of hatred, contempt, ridicule, fear, dislike or disesteem.

[44]           Gately on Libel and Slander (10th ed., 2004 at pp. 59-60) discusses the topic of defamatory meaning in the context of one’s calling as follows:

Any imputation which may tend to injure a person’s reputation in a business, employment, trade, profession, calling or office carried on or held by him is defamatory.  To be actionable, words must impute to the claimant some quality which would be detrimental, or the absence of some quality which is essential to the successful carrying on of his office, profession or trade.  The mere fact that words tend to injure the claimant in the way of his office, profession or trade is insufficient.  If they do not involve any reflection upon the personal character, or official, professional or trading reputation of the claimant, they are not defamatory.

Two Canadian examples of criticisms which were not found to impute a detrimental quality are the cases of Faminow v. Reid, [1971] 5 W.W.R. 708 (B.C.S.C.) and Paul v. Polichies (1981), 33 N.B.R. (2d) 377 (Q.B.).

[45]           It is necessary for the judge to firstly determine, as a matter of law, whether the statement in question is capable of bearing a defamatory meaning and, if it is, to secondly determine, as a question of fact, whether the statement defamed the plaintiff.  In determining whether the statement is capable of bearing a defamatory meaning, the state of mind of the person making the statement is not relevant; the fact that the person making the statement did not intend to convey a defamatory meaning does not mean that the statement is not capable of bearing a defamatory meaning.  Rather, it must be decided whether an ordinary person hearing or reading the words, and making reasonable inferences on the basis of their general knowledge, would understand the words to be defamatory.

[46]           In this regard, Raymond E. Brown made the following comments in The Law of Defamation in Canada (2nd. ed., 1994) at pp. 172 – 3:

Words are to be construed in their common, natural, ordinary, plain, popular and usual sense, and given their natural, obvious and ordinary meaning.  This is true even though a reasonable person might otherwise be mistaken in his or her belief and someone better informed might reach a different conclusion.  The natural and ordinary meaning is not necessarily the literal meaning of the words, but that meaning which they would naturally convey to those reading or hearing them, giving the words their ordinary signification.  It includes any inferences and implications which the words reasonably may bear.

I will now consider the meaning of each of the Statements.

(ii) The First Harrison Statement

[47]           The Further Amended Statement of Claim asserts that in their natural and ordinary meaning the words in the First Harrison Statement were understood to mean that Ms. Lane had forbidden events in schools to celebrate the festive season, that she had exceeded her authority as Superintendent and that she had acted inappropriately and with poor judgment.  It goes on to assert that one would conclude that she is a mean spirited person, incompetent and unsuitable for the position of Superintendent.

[48]           I reproduce the First Harrison Statement for ease of reference:

I think it’s important for the community to know that the order forbidding Christmas Concerts at our schools was not an order from the Board of Trustees.  It was issued by our Superintendent, CEO Lane without any direction from the Board.  This is most regrettable and not at all acceptable to me.

Personally, I believe that it is the Board of elected Trustees who are called upon to represent community practices and values, but we were completely ignored in this matter.  Our rule of law in our federal and provincial courts, our parliament systems, along with most of our great universities and hospitals were founded on Christian principles.  Those who were born in Canada and those lucky enough to choose Canada pledge allegiance to these founding principles.

I find it very distressing that in the name of extreme political correctness, this order to turn away from the ancient tradition of the school Christmas concert unacceptable.

For God’s sake, it’s just a concert and no single child is excluded from the fun.

It’s not about teaching religion.  I fully expect that from now on, all other faiths will receive a similar warning as their chosen date for celebration approaches.  I refer to Islam …

I don’t think there was any need to be so heavy-handed about such innocent school events as the beloved Christmas concert and I am distressed that we as trustees were not consulted.

[49]               The First Harrison Statement did not expressly state that Ms. Lane had forbidden events to celebrate the festive season or that she exceeded her authority as Superintendent.  Nor, in my view, would an ordinary person infer either of these things from the words contained in the First Harrison Statement.

[50]               Trustee Harrison stated in her letter that Christmas concerts had been forbidden.  That is a correct statement because the Christmas Notice does forbid concerts called Christmas concerts.  The letter does not suggest that any other events commonly associated with Christmas are prohibited.  It cannot be reasonably inferred from the letter that all other events celebrating the festive season are prohibited.

[51]           As read as a whole, all the letter indicates is that Ms. Lane issued the directive without consulting the Board of Trustees, which Trustee Harrison believed should have been consulted.  Although Trustee Harrison used the word “direction” in the first paragraph, she used the word “consulted” in the last paragraph.  In the second paragraph of the letter, Trustee Harrison expressed her belief that the Board of Trustees are called upon to represent community practices and values and stated the fact that the Board had been ignored.  An ordinary person would not reasonably infer that Trustee Harrison was stating as a fact that Ms. Lane had no authority to issue the Christmas Notice without first consulting the Board of Trustees.

[52]           Trustee Harrison was obviously critical of the decision of Ms. Lane to issue the Christmas Notice.  An ordinary person would understand the First Harrison Statement to mean that Trustee Harrison believed that Ms. Lane had made the wrong decision.

[53]           Even assuming that an ordinary person would have understood the First Harrison Statement to mean that Ms. Lane had forbidden events to celebrate the festive season and had exceeded her authority as Superintendent and accepting that an ordinary person would have understood the First Harrison Statement to mean that Ms. Lane had acted inappropriately and with poor judgment, it is my view that an ordinary person would not conclude that Ms. Lane was a mean spirited person, incompetent and unsuitable for the position of Superintendent.  The letter suggests that Ms. Lane acted out of “extreme political correctness”, not mean spiritedness.  The facts that Ms. Lane exceeded her authority and made a wrong decision in one instance do not, by themselves, lead to the conclusion that she is incompetent or unsuitable for the position of Superintendent.

[54]           As noted above, Gately on Libel and Slander states that words are not defamatory unless they impute to the plaintiff a quality which is detrimental (or the absence of a quality which is essential) to the successful carrying on of the plaintiff’s office, profession or trade.  The words must involve a reflection on the personal character or occupational reputation of the plaintiff.  It is not defamatory to say that a person acted beyond his or her authority or made a mistake unless it is attributed to a personal characteristic.  In the present case, the First Harrison Statement did not expressly or impliedly attribute any detrimental personal characteristic to Ms. Lane.

[55]           I hold, as a matter of law, that the words contained in the First Harrison Statement are not capable of a defamatory meaning.

(iii) The Cowling Statement

[56]           The Further Amended Statement of Claim maintains that in their natural and ordinary meaning the words in the Cowling Statement were understood to mean that Ms. Lane had exceeded her authority as Superintendent and had acted inappropriately and with poor judgment, and was therefore incompetent and unsuitable for the position of Superintendent.

[57]           I reproduce the Cowling Statement for ease of reference:

We have more than enough intelligence and experience on the part of our educators in this district to handle this in a very appropriate manner.  And I think unilateral and inflexible directives to the staff and students of this district do not serve us well.

[58]           As with the First Harrison Statement, the words in the Cowling Statement do not impute any detrimental quality to Ms. Lane and, hence, are not capable of a defamatory meaning.  Trustee Cowling was stating that the Christmas Notice was unilateral and inflexible, but no quality was expressly or impliedly attributed to Ms. Lane.  She was not making a general statement to the effect that Ms. Lane always acted unilaterally and inflexibly.

[59]           I would add that an ordinary person would not understand the words in the Cowling Statement to mean that Ms. Lane had exceeded her authority or had acted inappropriately and with poor judgment.  In the first sentence, Trustee Cowling stated that the educators in School District 68 could handle the issue of Christmas concerts in an appropriate manner.  An ordinary person would understand the word “unilateral” in the second sentence to mean that the directive was issued without consultation with the educators referred to in the preceding sentence, not the Board of Trustees.  An ordinary person would understand the word “inflexible” to mean that no discretion was left with the educators in School District 68 and, while Trustee Cowling obviously disagreed with the necessity for the directive, an ordinary person would not understand that Ms. Lane had acted inappropriately and with poor judgment.  Rather, an ordinary person would understand that Trustee Cowling disagreed with the inflexible nature of the Christmas Notice.

(iv) The Montgomery Statement

[60]           The Further Amended Statement of Claim alleges that in their natural and ordinary meaning the words in the Montgomery Statement were understood to mean that Ms. Lane had made an error and exceeded her authority in having the Christmas Notice issued and was therefore incompetent and unsuitable for the position of Superintendent.

[61]           I will again set out the Montgomery Statement for ease of reference:

I don’t want to put too tough a face on it because I don’t want to embarrass our superintendent here.  I’ll just say it was a surprise and had not gone through the board.  However, the board had to deal with it and we did.

[62]           Like the First Harrison Statement and the Cowling Statement, the Montgomery Statement does not attribute a negative quality to Ms. Lane.  It does imply that Ms. Lane made a mistake and that the Christmas Notice should have been referred to the Board of Trustees before it was issued.  However, an ordinary person would not understand the words to mean that Ms. Lane was incompetent and unsuitable for the position of Superintendent.

[63]           I hold that the Montgomery Statement is not capable of a defamatory meaning.

(v) The Second Harrison Statement

[64]           The Further Amended Statement of Claim asserts that the words contained in the Second Harrison Statement, in their natural and ordinary meaning or by way of innuendo, were understood to mean that Ms. Lane was neither qualified to nor capable of managing the education of children or of preparing the budget for School District 68.

[65]           The relevant portion of the newspaper article containing the Second Harrison Statement is reproduced for ease of reference:

While unable to discuss Polling’s concerns around plans to terminate Superintendent Carola Lane as it’s a personnel matter, Harrison assured the district is in good hands with the current board, chaired by Gerry Montgomery.

‘The education of children in the district has been, and continues to be, in the good hands of the principals and teachers’, she said.

Harrison said she also has concerns about the district’s budget but her concerns stem from the previous school board’s ‘whittling away’ at the district’s administrative structure.

‘There’s only one qualified person in the district to prepare the budget for 2003-04, and that’s our secretary-treasurer David Green’, she said.

‘A mammoth job has been put into the hands of one man.’

[66]           Trustee Harrison declined to comment to the reporter on the status of Ms. Lane’s employment because personnel matters were confidential.  She then went on to assure the public that School District 68 was in the good hands of the Board of Trustees and that the education of the children continued to be in the good hands of the principals and teachers.  The words do not state that Ms. Lane was not qualified or capable of managing the education of the children.  Nor would an ordinary person infer it from the words.  Trustee Harrison was simply providing an assurance that, despite the comments of Trustee Polling and irrespective of whether Ms. Lane’ employment was terminated, there was a good Board of Trustees and there were good principals and teachers.  The words were not a reflection of the qualifications or capabilities of Ms. Lane.

[67]           Trustee Harrison presumably made the comments about the budget because Trustees Allen and Polling had indicated that it would be financially irresponsible to terminate Ms. Lane’s employment in view of the potential funding shortfall for School District 68.  In my view, an ordinary person would not understand the comments about the budget, either expressly or impliedly, to be a negative reflection of the qualifications or capabilities of Ms. Lane.  The concern expressed by Trustee Harrison had nothing to do with Ms. Lane.  Trustee Harrison was commenting on the actions of the previous Board of Trustees, not Ms. Lane.

[68]           An ordinary person would infer from Trustee Harrison’s comments that no one in School District 68 other than Secretary-Treasurer Green, including Ms. Lane, was qualified to prepare the budget.  However, such an inference would not be defamatory because an ordinary person would not expect a superintendent of schools to have the financial qualifications required to prepare budgets.  If an ordinary person did infer that Trustee Harrison’s comments about the budget were a criticism of someone, he or she would reasonably think that they were directed at the Board of Trustees, not Ms. Lane.  An ordinary person would not infer from the use of the word “mammoth” in the last paragraph of the Second Harrison Statement that it was a huge task for Secretary-Treasurer Green because Ms. Lane was not qualified or capable of participating in the budget process.  Rather, an ordinary person would conclude from the article as a whole that it was a mammoth job as a result of the actions of the previous Board of Trustees.

[69]           I hold that the Second Harrison Statement is not capable of a defamatory meaning.

(vi) The Saunders Statement

[70]           The Further Amended Statement of Claim maintains that the natural and ordinary meaning of the words in the Saunders Statement were understood to mean that Ms. Lane had caused poor morale among the staff in School District 68 by her actions as Superintendent and had done a bad job in that position, and was therefore incompetent.

[71]           Again, for ease of reference, I will set out the article containing the Saunders Statement (which is in italics):

Polling won’t say why some trustees are anxious to replace Lane.

‘I personally see no evidence to show me that the superintendent has not done her job,’ says Polling.

But trustee Terry-Lynn Saunders says Polling, who was elected in November, has not been a trustee long enough to form such an opinion.  And she suggests a quick rounding up of news reports dating back to 1999 would counter Polling’s statement.

The only thing I would say to you is go back to your records.’ says Saunders.

‘Go back to the last four years.  You know what went on in this district.

Since Lane was hired in 1999, the school district has undergone significant management restructuring.

The changes began in late 2000 when the district’s three assistant superintendent positions were replaced with a deputy superintendent and three directors of education.

Subsequent restructuring saw those new positions eliminated and most of the district’s senior management removed.

And while Lane’s critics blame her for the low staff morale caused by the restructuring, trustee Allen says they’re pointing fingers in the wrong direction.

[72]           In order to consider the Saunders Statement, it is necessary to review some of the evidence leading up to the above article.  The topic of the possible termination of Ms. Lane’s employment was considered by the Board of Trustees to be confidential because it dealt with a personnel matter.  However, one or more Trustees were apparently discussing the topic outside of the Board of Trustees in January 2003 because the newspapers were publishing articles about it.  At its January 28, 2003 meeting, the Board passed a motion recommending that all discussions relating to Ms. Lane’s employment be kept in strict confidence and that no statements should be made to the public by the Trustees other than the Chair.  Although Trustees Allen and Polling voted in favour of the motion, they each decided to go public with their views.  They wrote letters to the Board and their letters were published in the February 4 edition of the Nanaimo Daily News.

[73]           Trustee Saunders testified that the reporter from the Nanaimo Daily News, with whom Trustee Saunders felt comfortable as a result of their past dealings, telephoned her and read the quote from Trustee Polling to the effect that she had seen no evidence that the Superintendent had not done her job.  Trustee Saunders responded that Trustee Polling had not been a Trustee long enough to have her opinion.  Trustee Saunders then told the reporter that she may not be able to answer any further questions.  The reporter proceeded to ask between 10 and 12 questions about Ms. Lane, and each time Trustee Saunders replied that she could not answer the question.  Trustee Saunders testified that the reporter got frustrated and said that she was just trying to do her job.  Trustee Saunders responded by saying to the reporter that she should go back to her records and that she knew what had gone on for the last four years.  Trustee Saunders testified that she made her comments with the view that the reporter would investigate the statements made by Trustees Allen and Polling, and would write a balanced story.  She considered it to be a casual conversation and she did not expect to be quoted by the reporter.

[74]           While the article itself may be capable of a defamatory meaning, the words spoken by Trustee Saunders are not defamatory.  The words actually spoken by Trustee Saunders were “The only thing I would say to you is go back to your records.  Go back to the last four years.  You know what went on in this District”.  She was essentially telling the reporter to form her own opinion about Ms. Lane’s job performance.  An ordinary person would not infer from those words that a negative quality was being imputed to Ms. Lane.

[75]           Trustee Saunders did not state that a round up of news reports would counter Trustee Polling’s statement.  That was a gloss added by the reporter.  Although the reporter had read Trustee Polling’s statement to Trustee Saunders, the words spoken by Trustee Saunders were not in direct response to that statement but, rather, they were spoken in response to the reporter’s frustration over Trustee Saunders’ refusal to answer any questions about Ms. Lane.

[76]           It was the reporter, not Trustee Saunders, who referred to low staff morale.  The reporter apparently did what Trustee Saunders suggested and decided to comment on the restructurings within School District 68 and the criticisms of Ms. Lane blaming her for low staff morale caused by the restructurings.  These comments cannot be attributed to Trustee Saunders.

[77]           Counsel for Trustee Saunders also took the position that the publication of her words was not authorized.  Counsel was unable to cite any authority to support this position other than cases dealing with “off the record” discussions.  As it is unnecessary to decide the point, I decline to comment on it.

[78]           I hold that the Saunders Statement was not capable of a defamatory meaning.

(vii) The Board Statement

[79]           The Further Amended Statement of Claim alleges that the natural and ordinary meaning of the words in the Board Statement were understood to mean that Ms. Lane had caused low morale, a lack of cooperation and a lack of stability.

[80]           I reproduce the Board Statement for ease of reference:

He added, however, that the district is at a crossroads and trustees felt the need for new leadership to deal with issues such as financial pressures and staff morale.

‘Going forward we need to bring stability and a new spirit of cooperation to the district,’ Montgomery said.  ‘We need to pull together the support of parents, teachers, principals, support staff and the district administration.’

Montgomery added that the Ministry of Education and the BC School Trustees Association have agreed to help the district find ways to improve the delivery of education services and provide more support to schools.

[81]           In my opinion, the words contained in the Board Statement are capable of bearing a defamatory meaning.  An ordinary person would understand the words to be an explanation of why the Board of Trustees decided to relieve Ms. Lane of her responsibilities as Superintendent.  Unlike other comments of the Defendant Trustees, the words in the Board Statement go beyond a disagreement with, or a criticism of, a single decision made by Ms. Lane.  The words suggest that Ms. Lane is responsible for low staff morale, a lack of cooperation and instability or failed to adequately address these issues.  An ordinary person would understand the words to impute to Ms. Lane a detrimental quality that caused these things to occur or the absence of a quality to rectify them.  An ordinary person would conclude from the words that Ms. Lane’s character is inadequate for her to be an effective superintendent of schools.  By imputing a negative quality to Ms. Lane, the Board Statement injured her reputation in her profession as an administrator in the field of education.

[82]           Counsel for the Board of Trustees submits that it is not defamatory to merely state, after the departure of the Superintendent, that an organization has an issue of morale or that it needs stability, and that the defamatory attribution would only arise if the statement asserts directly or by implication that there was something lacking in the skills or ability of Ms. Lane that caused the issues of instability and low morale.  In my view, the defamatory attribution does arise.  An ordinary person would conclude that the issues of staff morale, cooperation and stability were the reasons why Ms. Lane had been relieved of her position as Superintendent and that these issues were caused or were not rectified as a result of a lack of ability on the part of Ms. Lane.

[83]           I hold that the Board Statement was capable of a defamatory meaning, and I find that the Board Statement defamed Ms. Lane.

(b) Was there Qualified Privilege?

(i) Introduction

[84]           It is the position of the Defendants that each of the Statements were published on an occasion of qualified privilege.  I will consider this issue in respect of all of the Statements in case I am mistaken in my conclusions that the Statements other than the Board Statement were not defamatory of Ms. Lane.

[85]           If a defamatory statement is made on an occasion of qualified privilege, the maker of the statement is not liable unless it was made with malice towards the defamed person.  The leading description of qualified privilege is contained in the decision of Adam v. Ward, [1917] A.C. 309 (H.L.) at p. 334:

… a privileged occasion is, in reference to qualified privilege, an occasion where the person who makes a communication has an interest or a duty, legal, social, or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it.  This reciprocity is essential.

This passage was quoted with approval by the Supreme Court of Canada in Hill v. Church of Scientology at ¶143.  It was also quoted by the B.C. Court of Appeal in Moises v. Canadian Newspaper Co. (c.o.b. Times-Colonist) (1996) 24 B.C.L.R. (3d) 211 (C.A.), which contains a discussion of the topic of qualified privilege at ¶17 through ¶28.  The topic was also discussed at length in Parlett v. Robinson (1986), 5 B.C.L.R. (2d) 26 (C.A.).

[86]           One of the qualifications to the defence discussed in Moises is that a publication of the statement to the public generally (or “to the world”) will exceed the privilege unless there is proper reason for doing so.  For example, the B.C. Court of Appeal held in Parlett v. Robinson that a publication to the world was not overly broad because the Canadian electorate had a genuine interest in the matter.  In Adam v. Ward, it was held that a publication to the world was not too wide when the defendant was responding to a charge that the plaintiff had likewise published to the world.

[87]           An occasion of qualified privilege can arise with respect to statements made by public officials.  The requisite duty is discussed in The Law of Defamation in Canada (2nd ed., 1994) at p. 698:

Public officials at every level of government have a duty to keep each other, the government and the public informed on matters relating to the public interest.  Thus, city or town council members and county commissioners have an obligation to keep each other informed on matters falling within their competence, a mayor may be obligated to inform them regarding the actions of persons representing the interests of citizens …

In British Columbia, members of boards of school trustees are elected by the public.  Under s. 85 of the School Act, school boards are given the power and capacity to determine local policy in connection with the operation of schools and to make rules with respect to the operation of schools.

[88]           An occasion of qualified privilege also arises when a person’s character or conduct is attacked.  There is a qualified privilege for the person to answer the attack.  However, the protection is lost if the person goes beyond matters which were reasonably germane to the attack: see Douglas v. Tucker, [1952] 1 S.C.R. 275 at p. 286.  A person reacting to an attack is, however, entitled to reasonable latitude in responding: see RTC Engineering Consultants Ltd. v. Ontario (Solicitor General) (2002), 58 O.R. (3d) 726 (C.A.) at ¶29.

[89]           In Moises (at ¶19), the Court accepted the following statement from Sapiro v. Leader Publishing Co. Ltd., [1926] 2 W.W.R. 268 at 271 (Sask. C.A.) with respect to the factors to be considered by a court when determining whether an occasion is one of qualified privilege:

In determining whether or not it is so privileged, the Judge will consider the alleged libel, who published it, why, and to whom, and under what circumstances.  He will also consider the nature of the duty which the defendant claims to discharge, or the interest which he claims to safeguard, the urgency of the occasion, and whether or not he officiously volunteered the information, and determine whether or not what has been published was germane and reasonably appropriate to the occasion.

See also Reynolds v. Times Newspapers, [1999] 4 All ER 609 at 626 (H.L.) where, in concluding that “political information” should not be a generic category of information which attracts qualified privilege in every case it is published, Lord Nicholls set out a non-exhaustive list of 10 matters to be taken into account in deciding whether a publication was subject to qualified privilege.

(ii) The First Harrison Statement

[90]           The first article about the Christmas Notice was contained in the November 12, 2002 article of the Nanaimo Daily News.  Ms. Lane was interviewed by the reporter and she was quoted several times in the article.  It quickly became a matter of public interest.  It became a topic of discussion at an all-candidates meeting held between the time of publication of the article and the election for school trustees, which occurred on November 16.  Letters and telephone calls from the public, including a letter from the local Member of Parliament, were being received at the District offices.  Letters to the editor were being written to the Nanaimo Daily News (three such letters were published in the November 14 edition of the Nanaimo Daily News).  Trustees were being approached by members of the public who presumed that the Board of Trustees had been involved in the issuance of the Christmas Notice.  It had clearly become a public issue by November 14, the date on which it appears that Trustee Harrison sent her letter to the Nanaimo Daily News.

[91]           In these circumstances, I find that Trustee Harrison had a duty to keep her constituents informed about her position with respect to the Christmas Notice and that her constituents had a reciprocal interest to know her position.  It was not an overly wide publication to send the letter to the Nanaimo Daily News.  That newspaper has a local circulation and ran the initial story.  It was common for the Trustees to communicate with their constituents on previous issues by being interviewed by reporters from the local newspapers or writing letters to the editors of the local newspapers.

[92]           Ms. Lane argues that it was not an occasion of qualified privilege because Trustee Harrison precipitated the public controversy by giving a copy of the Christmas Notice to a reporter from the Nanaimo Daily News.  In my opinion, that does not deprive Trustee Harrison of the protection of qualified privilege.  She did not breach any confidentiality in passing on the Notice to the reporter.  She did not create the controversy by making critical comments to the reporter; she simply sent him the Notice without any comment.

[93]           Ms. Lane also submits that Trustee Harrison exceeded the qualified privilege because she said that Ms. Lane was acting outside her authority and she grossly exaggerated the import of the Notice.  I do not accept this submission.  The requirement is that the comment must be “germane and reasonably appropriate to the occasion” (see Ward v. Clark (2001) 95 B.C.L.R. (3d) 209 (C.A.) at ¶57).  Trustee Harrison did not say anything in her letter which was unconnected with the Notice.  Although it may have been possible for some people to misinterpret the letter as a result of the wording used by Trustee Harrison, she did not grossly exaggerate the gist of the Notice.

[94]           I find that the First Harrison Statement was made on an occasion of qualified privilege.

(iii) The Cowling Statement

[95]           The Cowling Statement was made at the special meeting of the Board of Trustees held on December 4, 2002.  Trustee Cowling testified that she had no real argument with the content of the Christmas Notice because she supported a policy of diversity.  However, in the weeks leading up to the December 4 meeting, Trustee Cowling came to realize that the Notice was unacceptable to many people in the community.  She testified that she felt that she had a duty to speak because she felt that people in the community should know how she felt.

[96]           In my view, the Cowling Statement was clearly made on an occasion of qualified privilege.  Trustee Cowling was an elected official and she made the Cowling Statement at a meeting of the Board of Trustees convened specifically to deal with the matter of the Christmas Notice.  She had a duty to communicate her views on the topic to other Trustees and the public who, in turn, had a duty or interest to learn her views.  Although there were reporters in attendance at the meeting, the Cowling Statement was not published to a wider audience than had been reading the newspaper articles and the letters to the newspapers published in the preceding three weeks.

[97]           Ms. Lane submits that Trustee Cowling had no duty to communicate her views to anyone because the Trustees had met informally before the official meeting of the Board of Trustees and agreed on the motions that were going to be passed at the meeting.  I accept that the Trustees did have an informal discussion before the meeting but I do not find that there was some sort of binding agreement that they would vote in favour of the proposed motions.  During the trial, I heard about many meetings of the previous Board of Trustees and they were quite unpredictable (one example of a bizarre meeting related to a document called an accountability contract, where it was fairly clear that most, if not all, of the Trustees were in general agreement with the contents of a draft of the contract but two motions to either approve or support the contract were defeated).  In any event, even if there had been agreement among the Trustees to pass the two motions, the motion to refer the matter to an ad hoc committee did not bring the issue to an end, with the result that Trustee Cowling still had a duty to inform the public of her position and the public had an interest in knowing the views of one of the elected Trustees.

(iv) The Montgomery Statement

[98]           Chair Montgomery made the Montgomery Statement to a reporter from the National Post several days after the Board meeting of December 4.  The reporter made an inquiry about the Christmas concerts issue and the meeting of December 4, and Chair Montgomery responded with the Montgomery Statement.

[99]           In my opinion, it would have been an occasion of qualified privilege if Chair Montgomery had made his comments to a local reporter.  Like Trustees Harrison and Cowling, he was an elected Trustee and had a duty to keep his electorate informed about an issue of public interest.  However, I agree with the submission of Ms. Lane that the publication of the words to a reporter from a national newspaper exceeded the privilege.  There is no evidence that the issue involving the Christmas Notice was a matter of national interest at the time Chair Montgomery spoke his words.

[100]       I hold that the Montgomery Statement was not made on an occasion of qualified privilege.

(v) The Second Harrison Statement

[101]       There had been speculation in the media in the latter part of January 2003 as to whether the Board of Trustees would be terminating Ms. Lane’s employment.  Trustees Allen and Polling wrote letters stating their opposition to the termination of her employment.  Their letters indicated that they would be speaking out publicly about the topic, and they made their letters available to the Nanaimo Daily News.  Among other things, Trustee Polling had raised concerns about the financial impact of terminating Ms. Lane’s employment.  Trustee Harrison was contacted by a reporter from the newspaper and asked to comment on statements that had been made by Trustee Polling.  She responded with the Second Harrison Statement.

[102]       I find that the status of Ms. Lane’s employment had become an issue of public importance by the time that the Second Harrison Statement was made.  As an elected official, Trustee Harrison had a duty to communicate with her electorate to the extent that confidentiality constraints permitted her to do so.  Her electorate had an interest in knowing her views.  Thus, I hold that she spoke on an occasion of qualified privilege and that she did not exceed the privilege.

[103]       Ms. Lane argues that the public did not have a duty or interest to receive the information contained in the Second Harrison Statement because the public interest in the affairs of School District 68 was overridden by the privacy interests of the participants when personnel matters are involved.  She also submits that it would be contrary to public policy to afford qualified privilege in these circumstances.  I might agree with Ms. Lane’s submissions if Trustee Harrison had breached a confidence when she spoke with the reporter.  However, she expressly declined to comment on the topic of any plans to terminate Ms. Lane, and I find that she did not breach a confidence by making the Second Harrison Statement.

(vi) The Saunders Statement

[104]       The Saunders Statement was made in the same circumstances as the Second Harrison Statement, and Ms. Lane makes the same argument against qualified privilege.  I find that the Saunders Statement was made on an occasion of qualified privilege.

(vii) The Board Statement

[105]       The speculation in the media regarding Ms. Lane’s employment status ended when the Board issued its press release of February 10, 2003 announcing that it was beginning its search for a new Superintendent.  In the Amended Statement of Defence, the Defendants plead that the Board Statement was published by Chair Montgomery on an occasion of qualified privilege because he was responding to attack and criticism by Trustees Allen and Polling.  In particular, the Defendants say that, in breach of a policy of confidentiality, (i) Trustee Allen publicly alleged that the motives of the other Trustees for considering the termination of Ms. Lane were improper (i.e., to reinstate middle and senior management positions that had been eliminated) and that School District 68 was being irresponsibly subjected to additional costs for severance payments and legal costs, and (ii) Trustee Polling impugned the motives of the other Trustees and attacked the financial responsibility of the other Trustees considering a motion to terminate Ms. Lane.

[106]       I agree with the submission of Ms. Lane that the Board Statement was not a statement by an elected trustee responding to an attack from other trustees.  Rather, it was a statement made by Ms. Lane’s employer, the School Board, announcing that it was beginning a search for a new Superintendent and inferentially stating the reasons why Ms. Lane had been terminated from her position.  Trustees Allen and Polling had not attacked the School Board in their public comments and there was no need for the School Board to respond to their statements.

[107]       Chair Montgomery did testify that he wanted to issue the press release because it was his first chance to respond to the statements made by Trustee Allen, Trustee Polling and others, such as a representative of the Parents Advisory Council whose comments had been reported in the press.  When asked what he wanted to achieve in issuing the press release, Chair Montgomery listed three things.  The first was to formally announce the change in leadership in as positive a fashion as possible.  The second was to announce that the Board had a plan to use the assistance of the Ministry of Education and the B.C. School Trustees Association to move forward.  The third was that he wanted to put an end to the thought that the termination of Ms. Lane from her position was costing School District 68 money.  Only the third of those reasons was a response to the criticisms made by Trustee Allen, Trustee Polling and the representative of the Parents Advisory Council.  I do not consider the Board Statement to be a response to the accusation made by Trustee Allen that the motive of the majority of the Trustees was to reinstate management positions that had been eliminated because the interim Superintendent was Mr. Borelli, one of the persons whose management position had been previously eliminated.

[108]       I conclude that the Montgomery Statement was not made on an occasion of qualified privilege.

(c) Was the Statement Fair Comment?

(i) Introduction

[109]       The Defendants have pleaded that all of the Statements other than the Montgomery Statement were fair comment on a matter of public interest.  In final submissions, counsel for the Defendants did not argue that either of the Second Harrison Statement or the Board Statement was fair comment but I will nevertheless address them.

[110]       Like the defence of qualified privilege, the defence of fair comment protects the maker of a defamatory statement from liability unless the statement was made with malice.  One of the leading British Columbia cases on the topic of fair comment is the Vander Zalm decision.  The Court of Appeal set out the requirements for the defence of fair comment at p. 213 of 18 B.C.L.R.:

The three elements of the defence of fair comment are well known.  First, the matter must be recognizable to the ordinary reasonable man as a comment upon true facts, and not as a bare statement of fact.  Secondly, the matter commented upon must be one of public interest ...  Finally, ... the comment must be ‘fair’ in that it must ... ‘represent an honest expression of the real view of the person making the comment’.

In The Law of Defamation in Canada, Professor Brown states the requirements to the same effect at p. 961.

(ii) The First Harrison Statement

[111]       Trustee Harrison’s letter to the editor was published in the Nanaimo Daily News six days after the paper had run its story about the Christmas Notice.  Like most letters to the editor, the First Harrison Statement was commenting on a topic that had been the subject matter of an article recently published in the paper.  An ordinary reasonable person would recognize the letter as an expression of Trustee Harrison’s opinion about the issuance of the Christmas Notice.

[112]       Ms. Lane argues that Trustee Harrison implied in the Statement that she had exceeded her authority as Superintendent and was therefore making a statement of fact, not a comment.  The facts stated by Trustee Harrison in that regard were that the Notice was not from the Board of Trustees and that it was issued without direction from or consultation with the Board.  Those facts were true and Trustee Harrison expressed her personal opinion about those facts.

[113]       Ms. Lane accepts that the matter commented upon in the First Harrison Statement was a matter of public interest.

[114]       Ms. Lane submits that the third requirement of the defence of fair comment has not been met because Trustee Harrison did not honestly believe that Ms. Lane had exceeded her authority as Superintendent in issuing the Christmas Notice.  Ms. Lane points to Trustee Harrison’s testimony during the trial to that effect and the statement of apology issued by the Board of Trustees on February 5, 2003.  Again, the comment that the Notice was issued without direction from or consultation with the Board does not mean that it was issued by Ms. Lane without authority.

[115]       The jurisdictions of the Superintendent and the Board of Trustees are not mutually exclusive.  Section 22 of the School Act provides that each school board must appoint a superintendent of schools, who under the general direction of the board, is responsible for the operation of schools.  As pointed out above, s. 85 of the Act gives school boards the power and capacity to determine local policy and make rules with respect to the operation of schools.  Ms. Lane was not required to obtain the approval of the Board of Trustees before issuing the Christmas Notices, but the Board did have the power and capacity to determine local policy and make rules with respect to the subject matter of the Notice.  Ms. Lane had the authority to issue the Notice without obtaining the approval of the Board of Trustees but, in doing so, she ran the risk of having it countermanded by the Board of Trustees.

[116]       I find that the First Harrison Statement meets the three requirements for the defence of fair comment and that it will be protected by the defence in the absence of malice on the part of Trustee Harrison.

(iii) The Cowling Statement

[117]       The Cowling Statement was made at a meeting of the Board of Trustees convened specifically for the purpose of considering the Christmas Notice.  Her comments would be recognized by an ordinary reasonable person to be her expression of opinion with respect to the issuance of the Christmas Notice.  The topic was clearly one of public interest.

[118]       Although Trustee Cowling did not personally find the content of the Christmas Notice to be unacceptable, she came to appreciate that others in School District 68 did not find it acceptable.  She testified that she believes that the District is diverse in nature and that an approach which might work in one region of the District may not work in a different region.  I find that the Cowling Statement did represent an honest expression of Trustee Cowling’s views and, therefore, was a fair comment on a matter of public interest.

(iv) The Second Harrison Statement

[119]       Trustee Harrison was asked by a reporter to comment on concerns expressed by Trustee Polling with respect to the termination of Ms. Lane.  She declined to comment on that topic and then made comments about the Board, the principals and teachers, and the budget.  There was no indication of the facts upon which she was supposedly commenting: see Gatley on Libel and Slander at p. 295.  As a result, her words constituted statements of fact, not comments on identifiable facts.

[120]       The Second Harrison Statement does not meet the first requirement of the defence of fair comment.

(v) The Saunders Statement

[121]       Trustee Saunders was asked to comment on a statement made by Trustee Polling and she responded by stating that Trustee Polling had not been a trustee long enough to have formed her opinion.  She declined to answer the reporter’s further questions about Ms. Lane and then suggested to the reporter that she look at her records for the past four years.  Trustee Saunders did not express an opinion on any facts.

[122]       As the Saunders Statement did not contain a comment on any facts, the first requirement of the defence of fair comment has not been met.

(vi) The Board Statement

[123]       As with the Second Harrison Statement, the Board Statement contains no indication of the facts upon which the Board may have been commenting.  The inferential meaning of the words in the Board Statement was one of fact, not comment on identifiable facts.

[124]       I find that the Board Statement does not meet the first requirement of the defence of fair comment.

(d) Was the Statement Made With Malice?

(i) Introduction

[125]       The absence of malice is a requirement for each of the defences of qualified privilege and fair comment, but the extent or type of malice may differ for each of the two defences.  Ms. Lane asserts that all of the Statements were made with malice.

[126]       I have made differing holdings for the various Statements with respect to the availability of these defences apart from the aspect of malice.  I have held that both defences are available in respect of two of the Statements (the First Harrison Statement and the Cowling Statement), that neither defence is available in respect of two of the Statements (the Montgomery Statement and the Board Statement) and that the defence of qualified privilege but not the defence of fair comment is available in respect of two of the Statements (the Second Harrison Statement and the Saunders Statement).  For the sake of completeness, however, I will address the issue of malice with respect to all of the Statements.

[127]       The Supreme Court of Canada commented on the topic of malice in the context of the defence of qualified privilege in Hill v. Church of Scientology at ¶145:

Malice is commonly understood, in the popular sense, as spite or ill-will.  However, it also includes … “any indirect motive or ulterior purpose” that conflicts with the sense of duty or the mutual interest which the occasion created … Malice may also be established by showing that the defendant spoke dishonestly, or in knowing or reckless disregard for the truth.

[128]       Malice may be inferred from the words contained in the defamatory statement or from other circumstances.  This has been respectively referred to as intrinsic evidence and extrinsic malice: see Simpson v. Mair and WIC Radio Ltd., 2004 BCSC 754 at ¶76 to ¶79 for a discussion of intrinsic and extrinsic malice.

[129]       One of the leading authorities on the topic of malice, cited in each of the closing submissions, is Horrocks v. Lowe, [1975] A.C. 135 (H.L.).  As with almost all defamation cases, the facts are distinguishable but the principles discussed in the decision are relevant.  At pp. 149 – 150, Lord Diplock explained the term “express malice” and described what is necessary to prove malice:

So, the motive with which the defendant on a privileged occasion made a statement defamatory of the plaintiff becomes crucial.  The protection might, however, be illusory if the onus lay on him to prove that he was actuated solely by a sense of the relevant duty or a desire to protect the relevant interest.  So he is entitled to be protected by the privilege unless some other dominant and improper motive on his part is proved.  ‘Express malice’ is the term of art descriptive of such a motive.  Broadly speaking, it means malice in the popular sense of a desire to injure the person who is defamed and this is generally the motive which the plaintiff sets out to prove.  But to destroy the privilege the desire to injure must be the dominant motive for the defamatory publication; knowledge that it will have that effect is not enough if the defendant is nevertheless acting in accordance with a sense of duty or in bona fide protection of his own legitimate interests.

The motive with which a person published defamatory matter can only be inferred from what he did or said or knew.  If it be proved that he did not believe that what he published was true this is generally conclusive evidence of express malice, for no sense of duty or desire to protect his own legitimate interest can justify a man in telling deliberate and injurious falsehoods about another, save in the exceptional case where a person may be under a duty to pass on, without endorsing, defamatory reports made by some other person.

Lord Diplock subsequently expressed the following caution at pp. 150 - 1:

Judges and juries should, however, be very slow to draw the inference that a defendant was so far actuated by improper motives as to deprive him of the protection of the privilege unless they are satisfied that he did not believe that what he said or wrote was true or that he was indifferent to its truth or falsity.  The motives with which human beings act are mixed.  They find it difficult to hate the sin but love the sinner.  Qualified privilege would be illusionary, and the public interest that it is meant to serve defeated, if the protection which it affords were lost merely because a person, although acting in compliance with a duty or in protection of a legitimate interest, disliked the person whom he defamed or was indignant at what he believed to be that person’s conduct and welcomed the opportunity of exposing it.  It is only where his desire to comply with the relevant duty or to protect the relevant interest plays no significant part in his motive for publishing what he believes to be true that ‘express malice’ can properly be found.

[130]       The above comments relate to the malice which defeats a defence of qualified privilege.  As noted by Gately on Libel and Slander at p. 309, it had been widely believed that the concept of malice was the same in relation to the defence of fair comment as it is in relation to the defence of qualified privilege.  However, it was held in Cheng v. Tse Wai Chun, [2000] 3 H.K.L.R.D. 418 (H.K. Ct. of Final Appeal), that the defence of fair comment may only be defeated if it is proven that the defendant did not genuinely hold the view that he or she expressed, irrespective of whether the statement was actuated by spite, animosity, intent to injure or other motivation.  At p. 433, Lord Nicholls explained the reason for this difference to be that the rationale for the defence of fair comment is based, not on the notion of performance of a duty or protection of an interest (as is the defence of qualified privilege), but on the high importance of protecting the freedom of comment on matters of public interest.

(ii) The First Harrison Statement

[131]       Ms. Lane asserts that Trustee Harrison engaged in a pattern of publicly criticizing, embarrassing and humiliating her, with the hostility and spite increasing the longer Ms. Lane remained Superintendent.  In her closing submission, Ms. Lane relied on the following non-exhaustive list of events, which I will summarize as briefly as possible:

(a)        Trustee Harrison encouraged staff to tell her their concerns about Ms. Lane;

(b)        Trustee Harrison commented that Ms. Lane had a “love-in” with the District Parents Advisory Council;

(c)        Trustee Harrison encouraged a meeting between Ms. Lane and Trustee Saunders at which Trustee Saunders told Ms. Lane that no one in the District liked her;

(d)        Trustee Harrison criticized the efforts to find a new Secretary-Treasurer after Secretary-Treasurer Frank resigned in November 1999;

(e)        Trustee Harrison talked to other senior staff about the difficulties in their working relationships with Ms. Lane, but did nothing to address the difficulties;

(f)         Trustee Harrison was instrumental in having the transfer of a principal overturned and criticized Ms. Lane in the process;

(g)        when there was a proposal to eliminate one of the three Assistant Superintendent positions in April 2000, Trustee Harrison’s statements reflected strong negative feelings towards Ms. Lane;

(h)        Trustee Harrison attempted to marginalize Ms. Lane by putting forward a specific motion to invite senior staff to attend a particular Board meeting when it was usual for them to attend Board meetings without a specific invitation;

(i)         Trustee Harrison ridiculed Ms. Lane about a recommendation of a Board committee regarding special criteria for principals of inner-city schools;

(j)         Trustee Harrison never forgave Ms. Lane for making a comment in April 2000 that Trustee Harrison did not really care about student poverty issues and just pretended to care about them;

(k)        Trustee Harrison demonstrated her lack of support for Ms. Lane by voting against a motion to affirm a policy relating to the position and authority of the Superintendent;

(l)         Trustee Harrison was critical of Ms. Lane when she commissioned an external investigator to look into an incident involving a web page created by high school students targeting a teacher;

(m)      Trustee Harrison raised concerns about aspects of a summary prepared by Ms. Lane regarding the Board’s expectations of the Superintendent;

(n)        Trustee Harrison showed no empathy towards Ms. Lane and took the side of an Assistant Superintendent in connection with an unfortunate incident involving the posting of a false ad on the Internet by the stepson of the Assistant Superintendent in which Ms. Lane was shown as soliciting sex at her e-mail address on the District’s computer network and which resulted in Ms. Lane receiving many pornographic e-mails of a disturbing nature;

(o)        Trustee Harrison criticized Ms. Lane when Ms. Lane suggested that she be contacted in connection with a request that Trustee Harrison had made of the District’s Director of Human Relations;

(p)        Trustee Harrison was critical of Ms. Lane when she made recommendations or referred to reports at Board meetings that had not been circulated to the Trustees prior to the meetings, but made no criticisms when one of the Assistant Superintendents did the same thing;

(q)        Trustee Harrison discussed the possibility of terminating the employment of Ms. Lane with Trustee Cowling as early as December 2000;

(r)        Trustee Harrison sent a fax letter to all the Trustees and senior management in December 2000 finding fault with Ms. Lane in connection with an internal report prepared in connection with an external review conducted on the topic of First Nations programs in the District;

(s)        in January 2001, Trustee Harrison distributed a set of recommendations regarding First Nations programs to members of the Board’s Education Committee without first sharing it with Ms. Lane;

(t)         Trustee Harrison harboured resentment towards Ms. Lane in connection with the cancellation of a District Organization Health Day in April 2001 and the failure of Ms. Lane to share with the Trustees a survey she had been given by the Nanaimo Schools Administrators Association regarding the organizational health of the District.  Also, Trustee Harrison wrote a memo in October 2001 to the President of the CUPE local, which was critical of Ms. Lane;

(u)        Trustee Harrison made a motion at a Board meeting in February 2001 directing Ms. Lane to write thank-you letters to the three Assistant Superintendents for work they had done three years earlier;

(v)        Trustee Harrison worked with Trustee Cowling to have an organizational review conducted in 2001 with the intent that it would involve a performance review of Ms. Lane;

(w)       Trustee Harrison attempted to lay the blame on Ms. Lane for long- standing unhappiness of non-union employees of the District with respect to their job descriptions and levels of compensation;

(x)        Trustee Harrison refused to endorse any of six points in respect of which Ms. Lane was requesting support after she revealed at a meeting on April 25, 2001 that she was being bullied by other members of the District’s senior staff, and Trustee Harrison subsequently wrote a critical memo about her perspective of that meeting;

(y)        in June 2001, Trustee Harrison circulated to five of Ms. Lane’s subordinates a fax in which she was critical of Ms. Lane’s handling of a discipline matter involving a teacher;

(z)        when Trustee Cowling resigned as chair of the Board on June 14, 2001, Trustee Harrison sent a copy of her letter of resignation to the local newspapers despite the fact that she had been told that the letter constituted personal information under the Freedom of Information and Protection of Privacy Act (R.S.B.C. 1996, c. 165) and that only Trustee Cowling and Ms. Lane were authorized to release the letter’s contents.  Also, Trustee Harrison never apologized for releasing the letter even though the Board passed a motion requesting her to apologize;

(aa)      Trustee Harrison was active in attempting at a Board meeting on September 26, 2001 to have three letters referred to the B.C. School Trustees Association, with the intent that it would result in a performance review of Ms. Lane being conducted;

(bb)      in November 2001, Trustee Harrison voted against the motion to approve the accountability contract prepared by Ms. Lane even though she had voted in favour of it at a committee meeting and, when the education partners wrote letters of concern, Trustee Harrison wrote a response that raised unrelated issues and put Ms. Lane in a bad light;

(cc)      Trustee Harrison made public comments about an exit interview given by one of the Assistant Superintendents who had left the District for another job;

(dd)      when the Board decided to eliminate some District positions in December 2001 as a result of a projected budget deficit, Trustee Harrison sent a memo to all of the schools in the District, in which she was critical of Ms. Lane and some of the other Trustees, and she criticized Ms. Lane in a subsequent newspaper article for telling the schools not to post her memo in the schools as Trustee Harrison had requested.  Ms. Lane also says that the decision to eliminate one of these position caused Trustee Harrison to have such strong feelings of ill-will towards her that those feelings became her primary motivation in all subsequent interactions involving Ms. Lane;

(ee)      in January 2002, Trustee Harrison wrote a letter to the Nanaimo News Bulletin which was critical of the state of affairs in the District and inferentially criticized Ms. Lane;

(ff)        in the winter and spring of 2002, Trustee Harrison was openly critical of the way Ms. Lane handled allegations of abuse against teachers;

(gg)      Trustee Harrison was critical of Ms. Lane in connection with the development of the 2002 – 2003 budget for the District and, when the interim Secretary-Treasurer resigned by letter dated May 9, 2002, Trustee Harrison wrote a letter to the newspapers in an attempt to put Ms. Lane in the worst possible light;

(hh)      Trustee Harrison sent an e-mail to all of the District’s administrative officers (which included all principals and vice-principals) in June 2002 that was critical of Ms. Lane in connection with the fact that the District’s newsletter had omitted mention of a motion for an organizational review of the District discussed at one of the Board’s committees and referred to a future meeting of the committee;

(ii)        Trustee Harrison sent a mocking e-mail in December 2002 about the holding of a year-end luncheon after the controversy caused by the Christmas Notice had arisen and during a time when she was discussing the termination of Ms. Lane’s employment with other Trustees; and

(jj)        Trustee Harrison was an active participant in the process to terminate Ms. Lane’s employment.

[132]       I do not propose to discuss the above events, but I have considered them, as well as all of the other evidence, in determining whether Trustee Harrison was actuated by malice in making the First Harrison Statement (and the Second Harrison Statement).  I should say, however, that I do not accept that all of the facts asserted by Ms. Lane in connection with this list were established by the evidence.  Nor am I satisfied that the facts which I do accept prove an ongoing malice on the part of Trustee Harrison against Ms. Lane.

[133]       My impression of Trustee Harrison from the evidence at trial is that she is a very opinionated and outspoken person.  Her statements were not always rational (which may have been a technique designed to cause controversy).  She could be very aggravating at times (for example, she wrote critical letters and e-mails following Board meetings at which she had not raised any concerns).  Trustee Harrison is not diplomatic, and her written words tend to be harsher than her spoken words.

[134]       There is no doubt that Trustee Harrison and Ms. Lane did not have a positive relationship after the first few months of Ms. Lane’s tenure as Superintendent.  Trustee Harrison did not agree with many of the actions taken by Ms. Lane.  At least by the last year of Ms. Lane’s employment, it was apparent to Trustee Harrison that Ms. Lane had aligned herself with the five Trustees who represented the majority of the Board.  It is clear that Trustee Harrison and Ms. Lane did not care for each other.  But the evidence does not support the position of Ms. Lane that Trustee Harrison came to hate her and took every opportunity to hurt her by publicly criticizing, embarrassing and humiliating her.

[135]       The conclusions that I do arrive at from the evidence are that Trustee Harrison disagreed with many of the statements and actions of Ms. Lane and that she was very outspoken in her criticism of the statements and actions with which she did not agree.  I do not believe that her criticisms were motivated by her personal feelings towards Ms. Lane.  They were motivated by disagreements in principle, albeit her principles were not always consistent.

[136]       I find that, in making the First Harrison Statement, the dominant motive of Trustee Harrison was not to injure Ms. Lane.  Rather, I find that her primary motive was to express her disagreement with the content of the Christmas Notice and with the fact that it had been issued without consultation with the Board of Trustees.  I further find that she was genuine in expressing her disagreement.  In making these findings, I am mindful that it was Trustee Harrison who initiated the public controversy over the Christmas concerts issue by sending a copy of the Christmas Notice to the press.

[137]       I hold that malice on the part of Trustee Harrison in the making of the First Harrison Statement has not been established.

(iii) The Cowling Statement

[138]       Ms. Lane submits that the evidence shows that beginning in December 2000 Mrs. Cowling was motivated by personal spite against her and that by November 2002 she was strongly motivated, in all her interactions involving Ms. Lane, by her strong dislike and her desire to humiliate and embarrass Ms. Lane.  Following is a brief summary of the events relied upon in this regard in Ms. Lane’s closing submission:

(a)        on the day on which Trustee Cowling was elected as the Chair of the Board on December 6, 2000, she and Trustee Harrison discussed a possible motion to dismiss the Superintendent;

(b)        later in December 2000, two District employees told Trustee Cowling negative things about Ms. Lane;

(c)        an issue arose about a possible error in the minutes of the Board meeting of June 30, 2000 regarding retroactive salary adjustments for the non-unionized District employees, and Trustee Cowling spearheaded a motion passed by the Board on January 31, 2001 to correct the “error”.  Ms. Lane says that there was no error and the issue was contrived as a pretext to attempt to terminate her employment;

(d)        in February 2001, Trustee Cowling pushed for annual performance reviews of senior staff and this led to an organizational review being conducted by the B.C. School Trustees Association, both with the intent, says Ms. Lane, to have her employment terminated;

(e)        Trustee Cowling had an excellent working relationship with Assistant Superintendent Borelli, who was disdainful of Ms. Lane;

(f)         Trustee Cowling became involved in the job evaluation and remuneration issues concerning the non-unionized employees of the District in an attempt to establish grounds for Ms. Lane’s dismissal;

(g)        at the April 25, 2001 meeting where Ms. Lane made the bullying allegation, Trustee Cowling did not agree to two of the six points in respect of which Ms. Lane had asked support from the Board of Trustees; Trustee Cowling told Assistant Superintendent Borelli about the April 25 meeting; Trustee Cowling came to a meeting on May 3, 2001, which the senior staff had requested to discuss the things said at the April 25 meeting;

(h)        Trustee Cowling resigned as the Chair of the Board on June 14, 2001 and in her letter of resignation, she stated that mutual confidence and respect did not exist between her and Ms. Lane and that she no longer wished to be associated with the style of management and method of operation that had developed;

(i)         in August 2001, Trustee Cowling wrote a letter to the local MLA, in which she was critical of the performance of Ms. Lane as Superintendent;

(j)         along with Trustee Harrison (and Trustee Saunders), Trustee Cowling was active at the Board meeting of September 26, 2001 in attempting to have three letters referred to the B.C. School Trustees Association, with the intent that it would result in a performance review of Ms. Lane being conducted;

(k)        Trustee Cowling was critical of Ms. Lane when she wrote a letter in February 2002 to the Nanaimo News Bulletin, in which she commented on the fact that an evaluation of Ms. Lane’s performance as Superintendent had never been performed;

(l)         Trustee Cowling did not agree with, and held Ms. Lane responsible for, the Board’s actions in making a complaint to the Institute of Chartered Accountants with respect to the letter of resignation of the interim Secretary-Treasurer in May 2002;

(m)      at two of the all-candidates meetings during the election campaign in the fall of 2002, Ms. Cowling was asked questions about Ms. Lane and responded that there were issues of mutual respect and confidence and, at one of the meetings, said that she would elaborate in private but not in public; and

(n)        Trustee Cowling participated in the process to terminate Ms. Lane’s employment, which Ms. Lane says was carried out in a callous, flagrant, outrageous and disrespectful manner with intent to harm her.

[139]       I did not comment on the list of events relied upon by Ms. Lane in support of her allegation of malice on the part of Trustee Harrison other than to say that I did not agree that all of the facts relied upon by her had been established by the evidence.  The same applies to the facts relied upon by Ms. Lane to support her allegation of malice on the part of Trustee Cowling.

[140]       My impression of Trustee Cowling from the evidence is that she is a highly principled woman.  She is fairly reserved but will speak her mind when she considers it necessary.  She is not as confrontational as Trustee Harrison (or Trustee Saunders).

[141]       Trustee Cowling and Ms. Lane had a fairly good relationship until Trustee Cowling became the Chair of the Board in December 2000.  Their relationship deteriorated fairly quickly, to the extent that Trustee Cowling resigned as the Chair only six months later as a result of her inability to have a relationship of mutual confidence and respect with Ms. Lane.

[142]       Ms. Lane was not able to point to many instances where Trustee Cowling was openly critical of her (the letter written by Trustee Cowling to the MLA, which was the most critical of Ms. Lane, was kept confidential by Trustee Cowling until this litigation was commenced).  Instead, Ms. Lane mainly points to events involving Trustee Cowling and suggests that Trustee Cowling was motivated by dislike of her in attempting to have her employment terminated.  I disagree with Ms. Lane’s assertions in that regard.

[143]       Although Trustee Cowling did not have a positive relationship with Ms. Lane after the spring of 2001, I find that Trustee Cowling did not hate Ms. Lane as alleged and that Trustee Cowling was motivated by the principles in which she believed when she made statements and took actions prior to the making of the Cowling Statement in December 2002.

[144]       Trustee Cowling did not speak out about the Christmas Notice prior to the Board meeting on December 4, 2002.  She did not have an issue with the content of the Christmas Notice, but she became concerned about the anxiety which had been caused within the community.  Trustee Cowling testified that she thought about the matter for a couple of days before the December 4 meeting and contemplated not saying anything.  I accept her testimony that she decided to speak because she felt that people in the community should know her position and that it was not her intent when she spoke her words to address the issue of Ms. Lane’s authority.

[145]       I find that Trustee Cowling was not motivated to harm Ms. Lane when she made the Cowling Statement.  I find that her primary motivation was to let her position on the controversy be known publicly and that, although she did not personally disagree with the content of the Christmas Notice, she was genuinely expressing her view when she spoke.

[146]       I conclude that malice on the part of Trustee Cowling in making the Cowling Statement has not been proven.

(iv) The Montgomery Statement

[147]       Ms. Lane asserts that Chair Montgomery felt enormous personal hostility towards her.  In addition to his demeanour while being cross-examined during the trial, Ms. Lane relies on the following items as support for his malice, which I will summarize briefly:

(a)        Chair Montgomery had been told negative things about Ms. Lane by numerous people;

(b)        Chair Montgomery thought that Deputy Superintendent Borelli had been treated poorly when he learned at a public meeting that his position was to be eliminated;

(c)        Chair Montgomery believed that one of his friends had been mistreated by Ms. Lane to the extent that he had left School District 68 for another position;

(d)        at an all-candidates meeting during the election in the fall of 2002, Chair Montgomery was the first speaker to raise the issue of the Christmas Notice;

(e)        upon being elected as Chair, he directed that Ms. Lane was no longer to attend the meetings to set the agendas for meetings of the Board and its standing committees;

(f)         Chair Montgomery did not consult Ms. Lane with respect to the format of the special Board meeting of December 4, 2002 or the motions proposed to be passed at that meeting;

(g)        Chair Montgomery decided that Ms. Lane was not to speak to anyone about the Christmas concerts issue and informed all principals, vice-principals and management staff that Ms. Lane had been requested to direct all correspondence and calls on the topic to the chair of the ad hoc committee;

(h)        Chair Montgomery spearheaded the process to terminate Ms. Lane’s employment without having any substantive interaction with her and acted in a callous manner during and after that process;

(i)         Chair Montgomery acted with insensitivity when he had an executive assistant inform Ms. Lane by e-mail one day before the January 28, 2003 meeting that she was free to comment on the Christmas concerts issue; and

(j)         after the Board decided to terminate Ms. Lane’s position as Superintendent, Chair Montgomery made public statements which did not include any positive comments about Ms. Lane.

Again, I do not propose to comment on these assertions other than to say that I do not accept that all of them were established by the evidence.

[148]       Chair Montgomery was a retired teacher and had previously been a trustee from 1993 to 1996.  There is no doubt that prior to his election in November 2002 Chair Montgomery was disturbed by things he had been hearing about the District.  He decided to run for election because, based on the information he had been provided and newspaper articles he had read, he felt that both the Board of Trustees and senior management were dysfunctional and that the morale in the District needed to be addressed.

[149]       Chair Montgomery had not met Ms. Lane prior to the fall of 2002.  By the time he made the Montgomery Statement, he had had very little interaction with her.

[150]       I have no hesitation in concluding that Chair Montgomery believed that Ms. Lane was doing a poor job as Superintendent and that School District 68 was suffering as a result.  One of his first acts as Chair was to initiate a process to consider her termination as Superintendent.  However, that does not mean that he felt ill-will towards her personally.

[151]       Chair Montgomery was pleased with the outcome of the December 4, 2002 meeting.  He felt that it had served to diffuse an emotional issue.  He testified that when he was contacted by the reporter with the National Post, his purpose was to continue to settle things down and to cool down an inflamed community.  He also testified that when he made the Montgomery Statement, he was not intending to imply that Ms. Lane was unsuitable to be the Superintendent.

[152]       I find that injuring Ms. Lane was not the dominant motive of Chair Montgomery in making the Montgomery Statement.  Although his choice of words was clumsy (i.e., “I don’t want to put too tough a face on it because I don’t want to embarrass our superintendent here”), I find that he did not intend to embarrass or otherwise injure Ms. Lane.

[153]       I conclude that it was not proven that Chair Montgomery acted with malice when he made the Montgomery Statement.

(v) The Second Harrison Statement

[154]       I have already reviewed the extrinsic evidence in connection with the relationship between Trustee Harrison and Ms. Lane when I discussed the topic of malice with respect to the First Harrison Statement.  I have found that the evidence does not support the position of Ms. Lane that Trustee Harrison took every opportunity to hurt her by publicly criticizing, embarrassing and humiliating her.

[155]       The Second Harrison Statement was made in response to an inquiry by a reporter about comments made by Trustee Polling, who had concerns around plans to relieve Ms. Lane of her position as Superintendent.  Trustee Harrison testified that she did not talk to the press about the status of Ms. Lane’s employment because the Trustees had been warned that it was a confidential matter and should not be discussed in public.  She testified that (i) she made the comment about the Board because Trustees Allen and Polling had been making comments in public to the effect that the other Trustees did not know what they were doing, (ii) she made the comment about the education of the children to let it be known that the children were fine because they deal with the principals and the teachers, not the Trustees and senior staff, and (iii) she made the comments about the budget as a result of the public comments being made by Trustees Allen and Polling (i.e., that it would be financially irresponsible to terminate Ms. Lane’s employment when the District was facing a budget shortfall).  I accept this testimony of Trustee Harrison.

[156]       I find that Trustee Harrison made the Second Harrison Statement for the reasons that she explained in her testimony and that her dominant motive was not to injure Ms. Lane.  Malice has not been proven.

(vi) The Saunders Statement

[157]       Ms. Lane says that Ms. Saunders had an extreme dislike of her from mid-1999 onwards, that she was working with Trustees Harrison and Cowling from late 2000 to attempt to have Ms. Lane’s employment terminated and that her ill-will towards Ms. Lane was a dominant factor in all her interactions involving Ms. Lane.  Following is a summary of the events relied upon by Ms. Lane in support of her position:

(a)        Trustee Saunders was told negative things about Ms. Lane by the Secretary-Treasurer who resigned in November 1999 and other members of senior staff;

(b)        Trustee Saunders was deeply disappointed by Ms. Lane’s refusal to write a letter to a representative of the Parents Advisory Council who had made a derogatory comment about the Secretary-Treasurer at a public meeting in April 1999;

(c)        Trustee Saunders came to Ms. Lane on June 29, 1999 and told her that nobody liked her;

(d)        Trustee Saunders did not vote for a motion to affirm a policy relating to the position and authority of the Superintendent;

(e)        Trustee Saunders wrote a letter to the editor of the Nanaimo Daily News critical of Ms. Lane after there had been media coverage of the resignation of Trustee Allen as Chair of the Board in May 2000;

(f)         Trustee Saunders felt that Ms. Lane made an offensive and highly unprofessional accusation that Trustee Saunders had private communications in 2000 with the person who was supposed to become the Secretary-Treasurer and characterized Ms. Lane’s accusation as being tantamount to insubordination;

(g)        Trustee Saunders criticized Ms. Lane’s actions in connection with a visit by the Minister of Education in January 2001;

(h)        Trustee Saunders was behind the motion in February 2001 directing Ms. Lane to write thank-you letters to the three Assistant Superintendents for work they had done three years earlier;

(i)         in March 2001 Trustee Saunders resigned from one of the Board’s committees and circulated a letter about her resignation to all of the principals, vice-principals and staff in the District office;

(j)         during her testimony about the organizational review conducted in the spring of 2001, Trustee Saunders let it be known that she held Ms. Lane responsible for the dysfunction of the Board of Trustees;

(k)        Trustee Saunders refused to endorse any of the six points in respect of which Ms. Lane was requesting support at the April 25, 2001 meeting, and exhibited disdain for Ms. Lane at the meeting and during her testimony at trial about it;

(l)         Trustee Saunders was very annoyed with Ms. Lane in respect of the November 2001 meeting of the Board of Trustees at which motions to approve or support the accountability contracts were defeated and, when the education partners wrote letters of concern, Trustee Saunders wrote a letter which was critical of Ms. Lane;

(m)      Trustee Saunders held Ms. Lane responsible for the elimination of the position of District Principal – Human Resources in December 2001;

(n)        Trustee Saunders was critical of Ms. Lane with respect to the cancellation of a meeting of one of the Board’s committees in January 2002 and wrote a letter to a parent about the cancellation of committee meetings;

(o)        in January 2002 Trustee Saunders made inaccurate or misleading statements casting Ms. Lane in a negative light to representatives of Aboriginal communities;

(p)        Trustee Saunders wrote an e-mail in March 2002 to Trustee Allen about the involvement of the interim Secretary-Treasurer in the 2002 – 2003 budget process and made a disparaging comment about Ms. Lane in the e-mail;

(q)        in April 2002 Trustee Saunders wrote an e-mail in which she was critical of Ms. Lane for asking for direction in respect of a teacher discipline matter by way of an e-mail;

(r)        Trustee Saunders held Ms. Lane at least partly responsible for the elimination of the positions of Deputy Superintendent and Director of Education in the spring of 2002;

(s)        Trustee Saunders sent a critical e-mail to Ms. Lane in June 2002 in connection with the reconsideration of a decision to eliminate itinerant teacher positions and she sent copies of the e-mail to numerous people;

(t)         in June 2002, Trustee Saunders sent an e-mail to all recipients of the District’s newsletter in which she joined in Trustee Harrison’s criticism of Ms. Lane in connection with the omission in the newsletter to mention the motion for an organizational review of the District discussed at one of the Board’s committees and referred to a future meeting of the committee;

(u)        Trustee Saunders held strong feelings of ill-will towards Ms. Lane for her recommendation in June 2002 regarding the appointment of a principal to a high school;

(v)        in January 2003, Trustee Saunders circulated an e-mail inferentially critical of Ms. Lane about a purported omission in the District’s newsletter in acknowledging an award given to one of the District’s principals; and

(w)       Trustee Saunders participated in the unfair and insensitive process to terminate Ms. Lane’s employment.

I again do not accept many of Ms. Lane’s characterizations of these events.  I am not satisfied that these events establish extrinsic malice on the part of Ms. Saunders.

[158]       Trustee Saunders is closer in disposition to Trustee Harrison than to Trustee Cowling.  She feels strongly about her principles and is not hesitant to voice disagreement in respect of decisions with which she does not agree.  She does not mince her words to the extent that she can be overly blunt.  She holds firm in her positions in situations where less confrontational people would be willing to make concessions.

[159]       Trustee Saunders wanted Ms. Lane to do well as the Superintendent.  When she went to meet Ms. Lane on June 29, 1999, she wanted to help Ms. Lane to be successful by telling her what was being said about her by the people working in the District office.  It was an occasion where Trustee Saunders meant well but lacked tact and was overly blunt.  Ms. Lane reacted negatively to what Trustee Saunders was telling her, and their relationship was never the same after that meeting.  The evidence was fairly clear that they did not have a positive relationship after that meeting and did not care for each other.

[160]       Like Trustee Harrison, Trustee Saunders was quick to raise questions or voice criticisms when she disagreed with statements made and actions taken by Ms. Lane.  I doubt that she would have been as critical if she had liked Ms. Lane.  However, I find that she did not hate Ms. Lane and that ill-will towards Ms. Lane was not the motivation of Trustee Saunders in her interactions involving Ms. Lane.

[161]       Trustee Saunders made the Saunders Statement in circumstances similar to the making of the Second Harrison Statement.  She was contacted by a reporter and asked to comment on a quote from Trustee Polling.  Trustee Saunders was cognizant of the confidentiality regarding the status of Ms. Lane’s employment and, after saying that Trustee Polling had not been a trustee long enough to have her opinion, she told the reporter that she could not answer any questions about Ms. Lane.  After the reporter became frustrated at Trustee Saunders’ refusal to answer numerous questions, Trustee Saunders made the Saunders Statement.

[162]       I find that the motivation of Trustee Saunders in making the Saunders Statement was to help the reporter write her story.  I find that an intent to injure Ms. Lane was not the primary motive of Trustee Saunders and, indeed, I find that it was no part of her motive.  Malice on the part of Trustee Saunders has not been proven.

(vii) The Board Statement

[163]       Neither Ms. Lane nor counsel for the Defendants specifically addressed the issue of malice with respect to the Board Statement in their closing submissions.  It is possible that they both intended their submissions on the topic of malice in relation to the Montgomery Statement to also apply to the Board Statement.  In view of the absence of specific submissions and my holdings that the defences of qualified privilege and fair comment are not applicable to the Board Statement, I will not make a finding on the issue of malice in connection with the Board Statement.

(e) Was the Statement Substantially True?

(i) Introduction

[164]       The Defendants have pleaded the defence of justification for all the Statements except the Second Harrison Statement.  In view of the subject matter of the Statements, it will be convenient to deal with the First Harrison Statement and the Cowling Statement together, and to deal with the Saunders Statement and the Board Statement together.

[165]       Professor Brown summaries the defence of justification in The Law of Defamation in Canada at pp. 502 - 3:

Justification or the truth of the matter asserted is a complete defence to an action for defamation.  The published material must be false.  ‘What is true cannot be defamatory.’  A Plaintiff has no right to have his or her character or reputation free of an imputation that is true.

The burden is on the Defendants to prove that the statement is substantially true.  The “sting” of the words must be justified.

[166]       The Defendants have pleaded the meanings that they attribute to the words spoken by them and contend that those meanings are true.  They are not required to accept Ms. Lane’s alleged defamatory meanings: see Miller v. Canadian Broadcasting Corp., 2003 BCSC 258.  I must determine whether or not the meanings pleaded by the Defendants are substantially true, but justification will not be a defence to any other defamatory meanings which may be found by the court.

[167]       The Defendants have provided extensive particulars in respect of the Saunders Statement and the Board Statement.  The Defendants are confined by the particulars in proving the substantial truth of these Statements and other evidence which may have been introduced during the trial cannot be relied upon.

(ii) The First Harrison Statement and the Cowling Statement

[168]           The Amended Statement of Defence pleads that if the words in the First Harrison Statement and the Cowling Statement were understood to mean that Ms. Lane had acted inappropriately and had acted with poor judgment, then the words were true in substance.  It also pleads that if the words in the First Harrison Statement were understood to mean that Ms. Lane had acted in a way that was not consultative, then the words were true in substance.  The Amended Statement of Defence does not assert that it was true that Ms. Lane exceeded her authority as Superintendent in sending out the Christmas Notice without the approval of the Board of Trustees.

[169]           Counsel for the Defendants says that Ms. Lane acted inappropriately because she issued the Notice without consulting a lawyer and without discussing the legislation with the School Board’s Management Committee.  Ms. Lane answers this assertion with an elaborate argument as to why the Notice was required by the applicable legislation.  She argues that the School Board would have broken the law if it had permitted events called Christmas concerts to be held in the District’s schools.

[170]           In order to make my decision on this point, it is not necessary for me to determine whether the provisions of the School Act prohibit the holding of events called Christmas concerts in public schools in British Columbia.  Nor would it be appropriate for me to make this determination in law when the issue is not truly before the court in the sense of having two adversarial parties making full submissions on the point.

[171]       In my opinion, it was not inappropriate for Ms. Lane to have issued the Notice irrespective of the requirements of the School Act.  She was the Superintendent for School District 68 and, as such, was responsible for the operation of the schools in the District under the general direction of the Board of Trustees.  She believed strongly in honouring the diversity of students.  It was open to her to decide that events called Christmas concerts should not be held in schools because that would emphasize the religion of some students to the exclusion of other students.  It may have been prudent for Ms. Lane to have obtained the concurrence of the Board of Trustees to ensure that, as a matter of policy within its jurisdiction, it agreed with her decision and would not subsequently countermand the decision.  But her failure to consult with the Board did not make it inappropriate for her to issue the Notice.

[172]       Counsel for the Defendants argues that Ms. Lane acted with poor judgment (i) in assuring the parent who raised the issue that Christmas concerts would be renamed upon reviewing the legislation on her own, (ii) in issuing the Notice without obtaining legal advice and (iii) in issuing the Notice without making inquiries as to the practices of other school districts.  In my view, none of these things establishes poor judgment.  As I stated above, Ms. Lane was entitled to issue the Notice even if it was not required by the School Act.  The controversy caused by the Notice was not reasonably foreseeable by her.  She had no reason to believe that the Board of Trustees would disagree with her decision (indeed, if the Board had been consulted before the Notice was issued, I suspect that it would have agreed to the issuance of the Notice over the objections of Trustee Harrison and one or two more Trustees at most).

[173]       It may be that Ms. Lane did act with poor judgment in refraining from suspending the Christmas Notice after the full force of the community’s reaction became known, especially after the complaining parent made this suggestion to her by e-mail dated November 21, 2002.  However, the words in the First Harrison Statement and the Cowling Statement could only reasonably be understood by an ordinary person to be referring to the issuance of the Notice, not a decision to refrain from suspending it.

[174]       I also find that it was not true that Ms. Lane acted in a manner that was not consultative.  She may not have consulted with the Board of Trustees or the principals in the District, but she did consult with the Management Committee.  Counsel for the Defendants argues that Ms. Lane did not fully consult with the Management Committee because she had already made up her mind prior to discussing the topic at a meeting of the Management Committee and that she did not share all of the pertinent information with the Management Committee (i.e., that the complaining parent was a lawyer actively involved with the Canadian Jewish Congress).  Although Ms. Lane told the complaining parent that she would work with the Management Committee in renaming Christmas concerts, I find that Ms. Lane was genuine in discussing the matter with the Management Committee and would have considered any valid concerns raised by a member of the Management Committee.  I do not believe that the Management Committee would have acted differently if it had known the identity of the complaining parent.

[175]       I hold that the meanings of the words in the First Harrison Statement and the Cowling Statement, as pleaded in the Amended Statement of Defence, were not substantially true.

(iii) The Montgomery Statement

[176]           The Amended Statement of Defence pleads that if the words in the Montgomery Statement were understood to mean that Ms. Lane had made an error, then the words were true in substance.

[177]           For the same reasons why I have held that Ms. Lane did not act inappropriately or with poor judgment, I find that she did not make an error in issuing the Christmas Notice.  In hindsight, after the issue had created a furor in the community, a new Board of Trustees decided to effectively suspend the Notice and to refer the matter to an ad hoc committee.  That does not mean that she made an error in issuing the Notice.

(iv) The Saunders Statement and the Board Statement

[178]       The Amended Statement of Defence pleads that if the words in the Board Statement and the Saunders Statement were understood to mean that (i) Ms. Lane caused poor morale and (ii) Ms. Lane caused poor morale among the staff of School District 68 by her actions as Superintendent, respectively, then the words were true in substance.  It also pleads that if the words in the Board Statement were understood to mean that Ms. Lane caused a lack of cooperation and a lack of stability, then the words were true in substance.

[179]       The Defendants have provided extensive particulars in respect of the Saunders Statement and the Board Statement.  The Defendants are confined by the particulars in proving the substantial truth of the Statements and other evidence which may have been introduced during the trial cannot be relied upon.  As a result, it would be inappropriate for me to engage in a general discussion of the evidence in connection with these matters.  It is incumbent on me to decide whether the words in question are substantially true on the basis of the particulars that have been proven by the Defendants.  Hence, I will not be reviewing the evidence generally as it relates to the truth of these statements.  I will, however, make some comments with respect to the witnesses.

[180]       I found the witnesses called by the Defendants to be generally credible.  There was consistency in the testimony on the major points.  They were mistaken about some details and did not recall many things, but I accept the substance of their testimony to be true.  I generally prefer the substance of their testimony over the substance of the testimony of Ms. Lane when they are in conflict.  It is understandable that the memories of the Defendants’ witnesses were not as good as Ms. Lane’s memory with respect to collateral facts.  As one of the Defendants’ witnesses stated, Ms. Lane’s life is dependent on recalling details, while it has been the opposite for the witness, who has been trying to forget or bury the events which occurred during an unpleasant period of her life.  Unlike the other witnesses, Ms. Lane had intimate knowledge of the documents that were introduced as exhibits in the trial, and she was in a much better position than the other witnesses to refresh her memory or reconstruct her memory in a fashion that was consistent with the documents.

[181]       People have different facets to their characters.  During the trial, Ms. Lane portrayed herself as a shy, pleasant and co-operative person who will take the blame when things go wrong as an act of diplomacy.  These characteristics may be part of Ms. Lane’s personality when it suits her purposes.  However, the evidence showed other facets of her personality.  The evidence disclosed instances where Ms. Lane was unkind to others, especially her subordinates.  It showed her to be manipulative at times.  In the words of counsel for the Defendants, the evidence showed her to be highly self-absorbed.  After hearing the cross examination of Ms. Lane and the testimony of the other witnesses, I formed the opinion that Ms. Lane had difficulty in perceiving events objectively and that this coloured her reconstruction of many events about which she testified.  On numerous occasions during her cross examination, she refused to unequivocally agree with the most obvious of propositions if they cast her in a negative light.

[182]       Attached as Appendix A are the particulars that I conclude were proved by the Defendants (with some non-material inaccuracies) and which support the truth of the Saunders Statement and the Board Statement.  Based on those particulars, I find that, during her period as Superintendent of the School Board, Ms. Lane did cause poor morale among the staff of the District, a lack of cooperation and a lack of stability.  In making this finding, I am mindful that there were some morale issues prior to Ms. Lane’s arrival in the District, but I am satisfied that morale became significantly worse as a result of Ms. Lane’s actions.

[183]       I am also attaching as Appendix B the particulars that I conclude were not proven by the Defendants or that do not support the truth of the Saunders Statement or the Board Statement.

[184]       I hold that the Board Statement was true and that the aspect of the meaning of the words in the Saunders Statement alleged by Ms. Lane in relation to poor morale was true.

(f) Wallace Damages

[185]       Ms. Lane claims that she is entitled to damages equal to six months of her salary for the manner in which her employment was terminated (in addition to the salary which Ms. Lane was paid for 12 months following the termination of her position as Superintendent).  This would be the equivalent of 18 months’ severance, the maximum period of severance permitted under the Employment Termination Standards Regulation (B.C. Reg. 379/97) pursuant to the Public Sector Employers Act, R.S.B.C. 1996, c. 384).

[186]       Ms. Lane asserts that the method in which her employment was terminated was callous and utterly insensitive, in violation of the obligation of good faith and fair dealing on the School Board.  In her written submissions, Ms. Lane listed 12 ways in which she says that the obligation was breached.  In my opinion, there are three reasons why Ms. Lane cannot succeed on this claim.

[187]       The first reason is that Wallace damages are only available when the employee has been wrongly dismissed.  In Wallace, the employee had urged the Supreme Court of Canada to recognize the ability of a dismissed employee to sue in contract or in tort for “bad faith discharge”.  At ¶78, the Court concluded that the employee was unable to sue on either of these two bases.  The Court went on to hold at ¶88 that bad faith conduct in the manner of dismissal is another factor that is properly compensated for by an addition to the notice period.  In this case, however, Ms. Lane was not wrongfully dismissed and I am not determining an appropriate notice period for the purposes of assessing damages for wrongful dismissal.

[188]       The second reason why Ms. Lane is not entitled to Wallace damages is that her contract of employment stated that the School Board had the ability to dismiss Ms. Lane without cause and, at its discretion, provide Ms. Lane with 12 months’ notice of termination or pay her salary and benefits for 12 months.  In these circumstances, where there is an employment contract containing an express term regarding notice of termination or payment in lieu thereof, the law does not imply a term providing for reasonable notice which is different from the express term: see Barnard v. Testori America Corp., 2001 PESCAD 4 at ¶7.  Even if the School Board had acted with bad faith in terminating Ms. Lane’s employment, the maximum amount of damages she is entitled to receive under her contract of employment is the equivalent of 12 months’ salary and benefits.  She has already been paid this amount, and she is not entitled to be paid any further damages.

[189]       The third reason why Ms. Lane is not entitled to Wallace damages is that I find that the School Board did not breach its obligation of good faith and fair dealing.  At ¶98 of Wallace, Iacobucci J. described the obligation in these terms:

The obligation of good faith and fair dealing is incapable of precise definition.  However, at a minimum, I believe that in the course of dismissal employers ought to be candid, reasonable, honest and forthright with their employees and should refrain from engaging in conduct that is unfair or is in bad faith by being, for example, untruthful, misleading or unduly insensitive.

[190]       In my view, the School Board did not act unfairly or in bad faith.  When it was decided that the Board of Trustees would meet to consider Ms. Lane’s employment on December 11, 2002, Chair Montgomery told Ms. Lane in advance about the meeting and answered honestly when Ms. Lane inquired whether the meeting was about her.  Ms. Lane testified that she had the sense during that conversation that her employment was going to be terminated.

[191]       Under her employment contract, Ms. Lane had the right to meet with the Board of Trustees if it was intending to dismiss her without cause.  Ms. Lane did meet with the Board, and the meeting was postponed twice at the request of Ms. Lane.  At that meeting, Chair Montgomery honestly told Ms. Lane that he considered morale in the District to be very low, that there was a concern about the handling of personnel matters and that the Board believed that a change in direction and leadership was needed.  Ms. Lane was given the opportunity to address the Board before it made the final decision to terminate her services as Superintendent.

[192]       Nothing unfair was done to Ms. Lane, and the Board was not untruthful or misleading in its dealings with Ms. Lane in connection with her dismissal.  It was somewhat insensitive to inform Ms. Lane of the Board’s decision over the telephone during a weekend.  However, Chair Montgomery did make himself available to meet in person.  Given the breaches of confidentiality by two of the Trustees, it would have been more insensitive not to inform Ms. Lane until she came to work on the Monday morning and run the risk that she would be told about her dismissal by a reporter or some other person.  Ms. Lane testified that she knew that the news was coming and what surprised her was that she was told not to come to work on the Monday morning.  Although there was some insensitivity, I do not regard the Board’s actions as being unduly insensitive.

[193]       There is no doubt that Ms. Lane was under stress around the time her employment was terminated.  It is stressful for any employee to have their employment terminated, even when they receive a forewarning.  In Ms. Lane’s case, the stress would have been much higher than the average person would endure because, as was said several times during the trial, her job was her life.  In addition, Ms. Lane was suffering from stress caused by the controversy over the Christmas concerts issue.  However, the Board did not have an affirmative obligation to assist Ms. Lane in reducing her stress.  The obligation of the Board was not to increase her stress by being unduly insensitive, and I find that it did not breach that obligation.

[194]       I will not specifically address all of the 12 ways in which Ms. Lane says that the School Board breached its obligation of good faith and fair dealing.  I have considered them all, individually and cumulatively, and I do not accept Ms. Lane’s submission that the Board breached its obligation.

CONCLUSION

[195]       I have concluded that Ms. Lane is not entitled to any damages for defamation in respect of the six Statements for the following reasons:

(a)        First Harrison Statement – it was not capable of a defamatory meaning, and Trustee Harrison is entitled to the protection of the defences of qualified privilege and fair comment;

(b)        Cowling Statement – it was not capable of a defamatory meaning, and Trustee Cowling is entitled to the protection of the defences of qualified privilege and fair comment;

(c)        Montgomery Statement – it was not capable of a defamatory meaning;

(d)        Second Harrison Statement – it was not capable of a defamatory meaning, and Trustee Harrison is entitled to the protection of the defence of qualified privilege;

(e)        Saunders Statement – it was not capable of a defamatory meaning, Trustee Saunders is entitled to the protection of the defence of qualified privilege and, if the words in it were understood to mean that Ms. Lane caused poor morale among the staff of School District 68 by her actions as Superintendent, they were true in substance; and

(f)         Board Statement – the words in it were true in substance.

I have also concluded that Ms. Lane is not entitled to Wallace damages.

[196]       I dismiss this action with costs to the Defendants.  Counsel for the Defendants reserved the right to make submissions on the issue of costs.  If both counsel for the Defendants and Ms. Lane consent, those submissions may be made in writing.  If there are to be oral submissions, arrangements for the hearing can be made in the usual fashion.

“D. Tysoe, J.”
The Honourable Mr. Justice D. Tysoe


 

APPENDIX A

1.         In her capacity as Superintendent and CEO, in the matter of a decision in April 2002 to eliminate three senior administrative positions that had the consequence of significantly reorganizing the administrative structure of the Defendant, Board of School Trustees of School District No. 68 (Nanaimo-Ladysmith) (hereinafter “the Board”) the Plaintiff:

1.1       Failed to consult with all Trustees regarding the proposed elimination of positions or the reorganization, while at the same time engaging in confidential communications with three Trustees and representatives of a parents organization ("DPAC").  As a result, at least four Trustees had no knowledge of the proposed changes until a motion relating thereto was made in public at a Special Business Committee Meeting on April 3, 2002.

1.2       On March 24, 2002, the Plaintiff made editorial changes to a document prepared by DPAC that advocated the organizational changes when the Plaintiff was aware that at least four Trustees were unaware of the changes.  The Plaintiff engaged in written communications with representatives of DPAC regarding the proposed changes when she knew that some Trustees were completely unaware of the plan.

1.5     Approved, condoned and participated in a process to eliminate the three senior positions in a way that the three senior administrative officers affected first learned of the loss of their positions at a public meeting when a motion was proposed that their positions be eliminated.  This method of implementation was secretive and unexpected, showed insensitivity to the three senior administrative officers, was humiliating and had a significant impact on staff morale.

1.6     Following the motion passed at the Special Business Committee Meeting on April 3, 2002, and prior to a subsequent Board Meeting at which a motion authorizing the changes required approval by the Board, the Plaintiff participated in confidential correspondence with three Trustees to the exclusion of at least four Trustees discussing strategies to ensure the motion authorizing the reorganization and elimination of the three positions would be approved by the full Board.  The Plaintiff's conduct was not cooperative in terms of her working relationship with the Board of Trustees, which had nine elected members.

1.7     Engaged in email correspondence with three Trustees dated April 4, 2002 which referred to the Deputy Superintendent in vituperative and demeaning terms as "the cancer".  On April 7, 2002 the Plaintiff further participated in demeaning correspondence in reference to the Deputy Superintendent which stated: "Remember Rick is the cancer. Rick is gone!"  On April 4, 2002, the Plaintiff participated in correspondence with three Trustees entitled "The Night of the Long Knives", which referred to the meeting of the Special Business Committee that had taken place the previous evening.  By her failure to remonstrate and by participating in the aforesaid correspondence, the Plaintiff demonstrated a manner of management and communication that was divisive, disrespectful and inimical to a cooperative working relationship between senior staff and the Board of Trustees.

1.8       … The decision, in the way it was implemented, constituted a lack of cooperation, and the secretiveness and abrupt, public nature of the announcement injured staff morale.

2.         Within a short time after she assumed her position as Superintendent and CEO, the Plaintiff had made statements to other staff members that were disrespectful and demeaning of the Secretary-Treasurer:

2.1       Shortly after her appointment, the Plaintiff stated to Kelly Weeks, the Executive Assistant to the Secretary-Treasurer, that “I’ve heard the rumours about you” and the Secretary-Treasurer.  The statement was demeaning about both Kelly Weeks and the Secretary-Treasurer and demonstrated a lack of respect by the Plaintiff towards the Secretary-Treasurer.  The date was on or about February 13, 1999 …

2.2       Stated to the Assistant Superintendent of Student Support Services, Pat Ross, and in the presence of another person (who was not an employee of the Board) that the Plaintiff was “going to get rid of Greg Frank” or words substantially identical to that.  The words demonstrated a lack of respect by the Plaintiff towards the Secretary-Treasurer.  The date was February 20, 1999.  The place was in a car belonging to Pat Ross, when the Plaintiff was being driven to a social event for senior staff at the home of Rick Borelli.

2.4       Stated to an Assistant Superintendent (Elementary Schools), Janine Longy, that "I want to get rid of" the Secretary-Treasurer, or words substantially identical to that.  The date was February 28, 1999.  The statement was made in the home of the Assistant Superintendent (Elementary Schools), Janine Longy.

2.5       Stated to the Executive Assistant/Secretary to the Superintendent, Jayne Fagan, that she did not need a Secretary-Treasurer or other words indicating that she intended to get rid of the Secretary-Treasurer.  The statement was made in 1999 but the precise date is unknown.  The statement was made in the office of the Superintendent.

2.8       Shortly after the Plaintiff assumed her position as Superintendent, the Plaintiff declined repeated offers by the Secretary-Treasurer to meet with her to explain how the budget was prepared in the Nanaimo-Ladysmith School District ... 

2.9       After a public meeting at which the Secretary-Treasurer made a presentation, the Plaintiff sent the Secretary-Treasurer an email that … condemned the quality of the budget presentation.  The Plaintiff, neither before or after sending the email, did not meet with the Secretary-Treasurer to discuss any perceived inadequacies in the budget presentation.  The date of the public budget meeting was April 8, 1999 and the email was sent on the same date.

2.10     When the Secretary-Treasurer attended the Plaintiff's office for appointed meetings to discuss budgetary or other financial related matters concerning the business of the Board, the Plaintiff routinely kept the Secretary-Treasurer waiting for lengthy periods.  The Plaintiff’s conduct in this regard caused Secretary-Treasurer Greg Frank to believe that the Plaintiff did not respect him or value his advice or collaboration.

2.11     Secretary-Treasurer, Greg Frank, resigned in 2000.  On November 5, 1999 Greg Frank delivered a letter of resignation, and his last day of work was January 31, 2000.

3.         The Director of Business Services (Financial Manager), Kristi Simpson (“Simpson”) resigned in or about August 2001.  The way the Plaintiff treated Simpson and other management staff, including conduct by the Plaintiff that was humiliating, demeaning and disrespectful, contributed to the resignation of Simpson.  The Defendants do not say that the Plaintiff’s conduct was the sole cause of Simpson’s resignation.

3.1       Simpson had held the position of Director of Business Services since 1997.  She was skilled and capable.

3.3       … the Plaintiff told Simpson to vacate the Secretary-Treasurer's office, when there was no other office accommodation available.  After moving from the Secretary-Treasurer's office, Simpson was stationed in a secretarial bay, in an open area of the office.  This incident was widely regarded as a humiliation of Simpson and became the subject of rumour and discussion in the Board offices ...

On September 29, 2000 during a meeting at which the Plaintiff and Simpson were both present, which concerned a complaint by the Executive Assistant to the Superintendent against Kelly Weeks, the Plaintiff stated that she was going to use the Secretary-Treasurer's office as a second office, or words to that effect indicating that Simpson should move out of the Secretary-Treasurer's office.  On or about October 4, 2000 Lane instructed Kelly Weeks to inform Simpson that Simpson would have to find another workplace because Lane was going to be moving down to use the Secretary-Treasurer's office.  On the same date Weeks relayed that message to Simpson. October 8, 2000 Lane by email Defendants' Document No. 499, told Simpson to move into another space.

3.4       Simpson's desire to continue working for the Board was further diminished by the way the Plaintiff had treated other employees, including the Secretary-Treasurer, Greg Frank.

Particulars of the matters referred to are the following:

3.4.1    At a dinner at the house of Kelly Weeks on January 22, 2000 the Plaintiff in the presence of Simpson made statements disparaging of Assistant Superintendent, Janine Longy, and of the Director of Instruction, Judy Fraser.  This incident is referred to in para 7.4 of the Particulars herein.

3.4.2    The Plaintiff, at a meeting with staff members on September 29, 2000, arising out of a complaint by the Executive Assistant to the Superintendent against Kelly Weeks, permitted the meeting to proceed in a way that was demeaning and humiliating of Kelly Weeks.  Simpson was present at the meeting. Subsequently, on or about October 4, 2000 the Plaintiff attended in Weeks office and threatened Weeks with a harassment complaint to be brought by the Plaintiff's Executive Assistant.

3.4.3    (Abandoned)

3.4.4    Following a public budget presentation by Secretary-Treasurer Greg Frank on April 8, 1999 the Plaintiff on the same date sent Frank an email that criticized Frank's budget presentation.  Frank showed the email to Simpson.  The email stated that Lane was extremely disappointed that the Secretary-Treasurer and the Superintendent and the Director of Communications did not "work together to prepare the materials for this evenings session", and complained that the presentation would have been much stronger had they worked together. Simpson was aware, as the facts are, that Frank had sought … to work collaboratively with Lane on the budget and Lane had declined to collaborate with Frank.

3.5       Simpson resigned in August 2001.  She did so because she found the Plaintiff's management style lacked cooperation, and was disrespectful and demeaning towards employees including Simpson.

Insofar as para 3.5 refers to the Plaintiff's conduct toward other employees, apart from the Plaintiff's conduct toward Simpson, the Defendants rely on the matter set out in para 3.4.1 to 3.4.4 herein.

3.6       With respect to the reference in paragraph 3.0 to the way the Plaintiff treated “other management staff”, the Defendants rely on the matters set out in paragraphs 3.4.1, 3.4.2, 3.4.3, and 3.4.4 of the Further Particulars dated May 14, 2004.

4.         After Simpson declined to accept the position of Secretary-Treasurer, Ernie Inglehart was appointed Secretary-Treasurer in November 2000.  One of the reasons why Inglehart resigned his position in or about October 2001, was because he found the Plaintiff's management style and conduct towards him lacked cooperation.  The Defendants do not say that the Plaintiff’s conduct was the sole cause of Inglehart’s resignation.

4.3       On May 2, 2001, Inglehart sent an email to the Plaintiff, the Board Chair, Rick Borelli and Robert Flood attempting to initiate a process to build cooperation between members of senior management and the Plaintiff …

4.4       Inglehart resigned in or about October 21, 2001.

6.         In February 2002, Peter Boyle, C.A. ("Boyle") was appointed Interim Secretary-Treasurer.  One of the reasons Boyle resigned on or about May 9, 2002 was because important decisions with financial implications were made in the absence of any, or adequate consultation with the Interim Secretary-Treasurer.  The Defendants do not say that this was the sole cause of Boyle’s resignation.

6.1       With respect to the elimination of three senior positions and the reorganization of the organizational structure revealed by motion passed at as Special Business Committee Meeting on April 3, 2002, Boyle was not informed or consulted at all with respect to that decision or its financial implications before it was announced at the public meeting.

6.4       The reasons for Boyle’s resignation are set out in a letter dated May 9, 2002 sent by Boyle to Mr. J. Garenkooper, Chair SD #68 (Nanaimo).

6.5       The resignation of Boyle contributed to instability and a lack of continuity in the management of the Board’s financial affairs.

7.         Executive Assistant to the Secretary-Treasurer, Kelly Weeks, took a leave of absence in August 2001 and resigned on February 6, 2002.  She had worked for the Board for 11 years, for most of that time in the position of Executive Assistant to the Secretary-Treasurer.

7.1       Shortly after the Plaintiff assumed her position as Superintendent, the Plaintiff stated to Weeks, "I've heard the rumours about you" and the Secretary-Treasurer.  The words were demeaning and unprofessional and indicated to Weeks that the Plaintiff did not respect Weeks' skills and competence.

The date was on or about February 13, 1999. This is the same matter referred to in para 2.1.

7.2       In late 2000, as a result of an email that Weeks sent to another staff member, the Plaintiff, without providing Weeks with an opportunity to defend herself threatened Weeks with harassment proceedings.

In a … meeting, the Plaintiff permitted another staff member to criticize Weeks' conduct without taking steps to ensure that the meeting was conducted in a way that was respectful and safe for all participants, including Weeks.  Weeks was humiliated and demeaned by the Plaintiff's conduct.

The meeting at which the Plaintiff permitted another staff member to criticize Weeks conduct took place on September 29, 2000 at the Board offices.  The meeting is referred to in Defendants' Document No. 486.  The occasion on which the Plaintiff threatened Weeks with harassment proceedings was on or about October 4, 2000, in Weeks office.  The Plaintiff's handling of the complaint against Weeks by the Executive Assistant to the Superintendent is referred to in Defendants' Document No. 489 and No. 490, dated October 3, 2000 and October 5, 2000, respectively.

7.3       Weeks became aware of statements attributed to the Plaintiff, that the Plaintiff was going to "get rid of Greg Frank".

7.4       At a dinner at Weeks' house, in the presence of Weeks and other persons the Plaintiff stated that an Assistant Superintendent, Janine Longy, was incompetent and that the Director of Instruction, Judy Fraser, did not know the first thing about programs.  By speaking in this way behind the backs of the employees concerned, the Plaintiff undermined the trust and cooperation among members of the management team.  The remarks damaged morale.  The date was January 22, 2000.

7.5       Weeks … became deeply disturbed about the way staff were treated in the office.

7.5.2    The incident in which the Plaintiff, on January 22, 2000, had a dinner at Weeks house made statements about Janine Longy and Judy Fraser in their absence.  See Particulars para 7.4.

7.5.3    With respect to Secretary-Treasurer Greg Frank (i) the incident relating to a public budget presentation done by Greg Frank on April 8, 1999 referred to in para 2.9 herein following the presentation on the same evening the Plaintiff stated in the presence of Weeks that “this is the worst budget presentation” she had ever seen or words substantially to the same effect; (ii) the conduct of the Plaintiff in routinely being late for appointments and keeping Secretary-Treasurer Frank waiting for lengthy periods before scheduled meetings referred to in para 2.10 herein; and (iii) comment made on or about February 13, 1999 referred to in para 7.1 herein.

7.6       One of the reasons why Weeks resigned was the Plaintiff's style of management undermined trust and cooperation and because she believed that the way the Plaintiff treated staff members, including herself, was demeaning.  The Defendants do not say that the Plaintiff’s conduct was the sole cause of Weeks’ resignation.  Insofar as 7.6 refers to the way the Plaintiff "treated other staff members" the Defendants rely on the matter set out at paras 7.5.1 to 7.5.3 herein.

8.         One of the reasons why the Board’s Director of Instruction, Judy Fraser, resigned and took early retirement in or about December 2001 was because the Plaintiffs style of management was demeaning towards Fraser and because the Plaintiff had demonstrated a lack of respect with regard to Fraser’s skills and abilities.  The Defendants do not say that the Plaintiff’s conduct was the sole cause of Fraser’s resignation.

8.1       At a Management Committee Meeting, Fraser presented a Report on Student Assessment.  The Report represented the culmination of extensive work by Fraser.  The Plaintiff by her words and conduct at that meeting demonstrated that she did not approve of the Report and subjected Fraser to questioning that was disrespectful and demeaning.  The Plaintiff's manner of dealing with Fraser at the meeting damaged staff morale.

The date of the Management Committee meeting is not ascertained, and further particulars will be provided.  In a letter dated July 8, 2004 Mr. Gooderham advised that the date of this meeting was April 17, 2000 and that further particulars would be delivered to confirm this.  In the same letter he says: “For the purposes of the defence as particularized in paragraph 8 of the Particulars, no other event or allegation is relied on relating to the conduct of the Plaintiff in her dealings with the former employee, Judy Fraser, in connection with the review of student assessment.”

8.1.1    The date of the Management Committee Meeting was April 17, 2000.  In advance of the meeting, the presentation of the report on student assessment and the attendance of Judy Fraser for that purpose was included in the Agenda of the Management Committee Meeting, which will be referred to at trial and is produced as Defendants’ Document 1051.  Following the Management Committee Meeting a report of the Committee’s discussion of student assessment was distributed, which has been produced as Defendants’ Document 1052.  At trial the Defendants will refer to an email sent by Lane to members of the Management Committee dated April 17, 2000, which is identified as Defendants’ Document 1053.

8.3       At a social occasion at the home of Kelly Weeks, and in the presence of other persons, the Plaintiff stated that Judy Fraser didn't know the first thing about programs.  The date was January 22, 2000.

8.4       It became generally understood in the Board’s office that the Plaintiff did not respect Fraser’s work and did not like Fraser.

In relation to the statement that other staff members at the district office generally understand that the Plaintiff did not respect Fraser’s work and did not like Fraser, the Defendants rely on the following incidents and say that belief was held by the following persons:

8.4.1    As a result of the incident during the Management Committee meeting referred to in para 8.1, Rick Borelli and Pat Ross were led by the Plaintiff’s words and conduct to believe that the Plaintiff did not respect Fraser’s work.

8.4.3    As a result of the incident referred to in para 8.3, Kristi Simpson and Kelly Weeks held that belief.

8.5       The Plaintiff did not conduct a performance evaluation nor undertake to discuss with Fraser any perceived shortcomings in the way that Fraser was discharging her duties.

8.6       (Abandoned)

9.         The Assistant Superintendent, Student Support Services, Pat Ross (“Ross”) resigned in 2001.  Ross resigned because he believed the working and learning conditions for him as a professional were untenable.

9.1       Shortly after the Plaintiff assumed her position as Superintendent, the Plaintiff stated to Ross with respect to the Secretary-Treasurer, Greg Frank, "I am going to get him", or words substantially identical to that.  The date is February 20, 1999.  The date and place is the same as set out for para 2.2 of the Particulars herein.

9.2       Ross regarded Frank as a highly competent and skilled Secretary-Treasurer.

9.3       Ross' reasons for resigning his position are set out in letter dated November 2, 2001, delivered by Ross to Dr. Lee Southern, Executive Director of the B.C. School Trustees Association in connection with an exit interview and forming part of a Report of Exit Interview with Dr. Patrick Ross dated November 6, 2001.  In particular, the workplace at the Board Office was significantly affected by the following behaviour and conduct:

9.4       People, including the Plaintiff, talked about individuals behind their backs;

9.5       Senior Management did not function as a team;

9.6       (Abandoned)

9.7       Senior staff were demoralized;

9.8       Poor communication and absence of respect in the relations between the Plaintiff and other members of Senior Staff;

9.9       The inability or unwillingness of the Plaintiff to provide leadership of a kind that encouraged team work and collaboration contributed to the above conditions and was one of Ross' reasons for his resignation.  The Defendants do not say that the Plaintiff’s conduct was the sole cause of Ross’ resignation.

With respect to the matters set out in paragraphs 9.4, 9.5, 9.7, 9.8 and 9.9 of the Particulars and Ross’s reasons for resigning his position, the Defendants rely on the following particulars:

9(a)      The Defendants repeat the facts set out in paragraph 9.1 which refer to an incident on February 20, 1999.

(b)        The Defendants repeat the facts set out in paragraph 2.9, which referred to a public meeting at which the Secretary-Treasurer, Greg Frank, made a presentation.  The public meeting was on April 8, 1999.  Ross became aware that Lane made complaints about Frank’s performance as Secretary-Treasurer in connection with the public meeting and preparation of the presentation made at the public meeting, and became aware that Lane’s complaints were set out in an email dated April 8, 1999 sent by Lane to Frank.

(c)        From time to time during the year 1999 Frank informed Ross that he was unhappy in his working relationship with Lane and that Lane was not accessible to discuss matters of common interest between the Secretary-Treasurer and the Superintendent.

(d)        The Defendants repeat the facts set out in paragraph 8.1 of the Particulars and 8.1.1. of the Further Particulars II herein, which refer to a presentation of a report by Judy Fraser.  Ross was present at the said Management committee meeting held on April 17, 2000.

(e)        Ross was aware that Kristi Simpson was offered the position of Secretary-Treasurer, and that Simpson declined the offer on or about September 14, 2000 ... 

(f)         Ross was an Assistant Superintendent with an office at a location known as Student Support Services, where a staff of approximately 50 persons worked under his supervision.  Lane never, or rarely visited the Student Support Services office to meet with Ross or his staff in the period of over 18 months between the time Lane was appointed Superintendent CEO until Ross was seconded to the Ministry of Education in September 2000.  With rare exceptions, Lane’s communications with Ross concerning his professional duties were almost exclusively in writing, mainly by email, save for occasions when Ross attended meetings of the Management Committee or other scheduled staff or Committee meetings.  As a result, Ross’ communications with Lane were limited.

9.10     Ross' resignation further contributed to the lack of stability and continuity in educational staff in the Board.

10.       … in November 2000, the Plaintiff introduced a reorganization of the Board’s Administration.  She recommended and the Board adopted a new structure that appointed Rick Borelli as Deputy Superintendent, and appointed two Directors of Education.  In April 2002, the aforesaid three positions were eliminated in another reorganization.

11.     By the second half of 2001, there were significant morale problems affecting senior administrative staff, working relationships between the Superintendent and senior staff, and the Trustees.  In saying that by the second half of 2001 there were significant morale problems effecting senior administrative staff and working relationships, the Defendants rely on the facts particularized in paras 2, 3, 4, 5, 7, 8, 13, 14, 15 and 16 herein.

12.     The elected Trustees decided to institute an organizational review, which resulted in a report issued March 2001.  The report addressed issues affecting morale, cooperation, and stability affecting the working relationship between senior staff, the Superintendent, and the elected Trustees.

13.     The authors of the Report suggested that the Superintendent prepare a plan to remedy the issues involved including, inter alia, problems of communication and cooperation.  On April 25, 2001, a meeting was convened between the Superintendent and the elected Trustees for the purpose of considering the plan that the Superintendent had been asked to prepare. In the course of that meeting, the Plaintiff alleged that the Deputy Superintendent had been harassing and bullying her, and causing her to change her decisions on matters.  The Deputy Superintendent was not present at the meeting and had been given no prior notice that there were serious allegations against him, nor had the Plaintiff raised such allegations in any prior performance review.  The allegations were unfounded.

14.     The statements made by the Plaintiff at the meeting on April 25, 2001 alleging harassment and bullying against senior staff became known to other senior administrative officers, including Inglehart, as a result of which Inglehart on May 2, 2001 requested a meeting with the Chair of the Board, the Defendant Cowling, and with the Plaintiff in order to discuss problems of the relationships between the Superintendent, senior staff and the Board, with a view to resolving problems that were causing lack of cooperation and trust.

15.       When the meeting was convened on May 3, 2001, the Plaintiff stated that she was not comfortable proceeding with the discussion as long as the Chair of the Board, the Defendant Cowling remained in the room.  The Chair of the Board left the meeting.  The Plaintiff was unwilling to work with the Board Chair in an attempt to resolve any problems affecting the relationship between the Plaintiff and the Deputy Superintendent, which had been the subject of allegations made at the meeting on April 25, 2001.

16.       On June 14, 2001, the Chair of the Board resigned because the attempt to proceed with the organizational review had failed.

APPENDIX B

1.3       In written correspondence with the President of DPAC on March 24, 2002 regarding the proposed changes, agreed that most of the Trustees cannot be trusted.  By her words, the Plaintiff disparaged Trustees in the eyes of DPAC and undermined trust between the parents and the elected Trustees.

1.4       Discussed the proposed organizational change with three Trustees and representatives of DPAC without discussing the same with members of the senior administrative staff and, in particular, without discussing same with the Interim Secretary-Treasurer.

1.8       The decision in April 2002 to make the organizational changes was made without consultation with the Management Committee or principals …

2.1       … Weeks was driving the Plaintiff to a social event at the home of Donna Reimer.

2.3       Stated to Senior Administrative Officer, Judy Fraser, in relation to the Secretary-Treasurer that “he’s got to go”, or words substantially identical to that.  The statement was made on a social occasion outside the Board offices, in the presence of other persons.  The date is unascertained, but it was in or about late January or early February 1999.  The place was in a restaurant called Katrina’s Place on Front Street in Nanaimo, B.C.

2.6       (Abandoned)

2.7       The Secretary-Treasurer received no performance review or other communication indicating that his performance, in any way, was unsatisfactory.

2.8       … The Plaintiff’s response was to state to the Secretary/ Treasurer: “I don’t need you to tell me anything about budgets”, or words substantially identical to that.

2.9       … in scathing terms …

3.2       Following the resignation of Greg Frank, Simpson was informed by the Plaintiff that she would be offered the position of Secretary-Treasurer.  The Board, however, failed to provide Simpson with a contract in a timely manner and prolonged negotiations ensued.  Simpson was offered a salary that was low in relation to comparable positions.  The Plaintiff informed Simpson that the Plaintiff would assume some of the duties of the Secretary-Treasurer and the facts are that the Plaintiff sought to restructure the administration so that the Plaintiff would control the budget process.  Because of concerns that she would not have adequate authority to discharge the responsibilities of the Secretary-Treasurer and because the compensation offered was inadequate, Simpson declined the position.  She resumed her position as Director of Business Services.

In the period of time between January 2000 and the time that Kristi Simpson went on maternity leave, the Plaintiff orally stated to Kristi Simpson that she wanted Simpson to take the job as Secretary-Treasurer.  The precise date is unknown.  On June 23, 2000 Robert Flood, Director of Human Resources, by telephone offered the position of Secretary-Treasurer to Simpson at a salary of $90,000.00.  On June 26, 2000 Simpson rejected that offer.  On July 12, 2000 Robert Flood, by email, communicated another offer to Simpson with a copy of that offer being provided to the Plaintiff.  The terms of that offer are set out in Defendants' Document No. 457.  On or about August 30, 2000 Simpson returned to work in her former capacity as Director of Finance because the terms for her appointment as Secretary-Treasurer, including salary, had not been resolved.  On September 11, 2000 the Administrative Personnel Committee (APC) made a recommendation to the Board of School Trustees that Simpson be appointed Secretary-Treasurer on specified terms which are set out in Defendants' Document No. 469.  On September 14, 2000 Simpson declined the offer.  Simpson communicated her reasons for declining the offer to the Plaintiff by email dated September 14, 2000, which is produced as Defendants' Document No. 473.

3.3       Immediately after Simpson decided not to accept the position of Secretary-Treasurer …  The Plaintiff demanded that Simpson send an email to staff denying that the Plaintiff had requested that Simpson vacate the Secretary-Treasurer's office.  When Simpson declined to do so, the Plaintiff sent an email dated October 12, 2000 to office staff denying that "I have kicked her out of the office".  The Plaintiff's email was demeaning of Simpson.

3.4.4  … every opportunity …

4.1       During the preparation of the budget in the year 2001 and due to restraint in funding from the provincial government, the Board experienced difficulty in balancing the budget of the School Board.  In order to achieve a draft budget that would be in balance, the Plaintiff directed that certain costs relating to replacement teachers be presented in an amount stated in the draft budget that was substantially lower than the actual costs incurred during the two previous years.  Inglehart expressed his concerns about the budget numbers which he believed misstated the financial situation facing the Board.  The Plaintiff resisted Inglehart's efforts to bring the matter to the attention of the Board.

The occasion on which the Plaintiff directed that certain costs relating to replacement teachers be presented in an amount stated in the draft budget that was substantially lower than the actual cost incurred in the two previous years was April 19, 2001 at a meeting of the Management Committee.

4.2       The Plaintiff by her own choice declined to establish a cooperative working relationship with Inglehart.

4.3     …  Despite his efforts, Inglehart was unable to establish a cooperative working relationship with the Plaintiff.

4.5       Inglehart in a memorandum dated September 17, 2001 to the Board Chair, School District No. 68, set out the reasons for his resignation.

5.       For a lengthy period after the resignation of Inglehart in or about October 2001, the Board operated without a full-time Secretary-Treasurer.  The Plaintiff assumed the functions of Secretary-Treasurer, and was appointed Acting Secretary-Treasurer for a lengthy period.  In the interim, the Director of Business Services, Kristi Simpson had already resigned in August 2001.  The Executive Assistant to the Secretary-Treasurer, Kelly Weeks, resigned in July 2001.  By reason of the aforesaid resignations, the Board experienced instability and a lack of continuity in financial management.

6.2       Unknown to Boyle, the Plaintiff had decided that she would be in charge of the construction of the budget with only “number crunching support” by Boyle.  The Plaintiff engaged in email correspondence with two Trustees dated April 4, 2002 that referred to Boyle as a person hired only to “crunch numbers” and not to give policy advice.  Boyle was unaware of this plan as were other Trustees.  The correspondence was demeaning and disrespectful towards Boyle and was calculated to undermine the trust and confidence between the Interim Secretary-Treasurer and the elected Trustees.  By her conduct in relation to Boyle in connection with the budget during the period February 13 to April 24, 2002, the Plaintiff contributed to a lack of cooperation and trust in the financial management of the Board’s affairs.  The Defendants do not say that the Plaintiff’s conduct in relation to Boyle was the sole cause of the lack of cooperation and trust in the financial management of the Board’s affairs.

6.3       The Plaintiff failed or was unwilling to develop a cooperative working relationship with Boyle.

7.2       … subsequent …

7.5     … observed the manner in which Simpson was asked to vacate the Secretary-Treasurer's office, which Weeks attributed to a direction given by the Plaintiff, and …

7.5.1    The manner in which Simpson was told by the Plaintiff to vacate the Secretary-Treasurer's office.  The matter is referred to in para 3.3 of the Particulars herein.

8.2       With respect to Fraser's discharge of her duties in relation to First Nations' Education, the Plaintiff stated to the Executive Assistant/Secretary to the Superintendent, Jayne Fagan that:

"I did this job in Carleton.  I could do a much better job of it," or words substantially the same in meaning.  The statement belittled Fraser's skills and abilities.

Date is unknown.

8.4.2    As a result of the incident referred to in para 8.2, Jane Fagan held that belief.

8.7       The Plaintiff attended at the Curriculum Resource Centre, where Fraser was responsible for a staff of resource teachers.  Without any prior discussion with Fraser, the Plaintiff addressed the resource teachers and questioned the value of their work contribution.  The Plaintiff’s intervention undermined Fraser’s position and authority, because Fraser had been given no forewarning that the Plaintiff intended to raise questions about the job performance or usefulness of the staff members for whom Fraser was responsible.  The date is unknown.

9(e)      … In or about September 2000 Simpson told Ross that in connection with the offer of the Secretary-Treasurer position she had been treated poorly, or words to that effect, that she had been offered a salary that was low in relation to the amount paid to the Secretary-Treasurer, Greg Frank, and that the position offered to her was reduced in scope and in importance.

10.       Following the resignations of Fraser and Ross …

17.       In the matter of the distribution of the Notice dated November 1, 2002:

17.1     The Plaintiff caused the Notice to be distributed to principals and other persons, without consulting with the elected Trustees.

17.2     The Plaintiff distributed the Notice without consulting with, or without prior discussion with, the principals or teachers who would be the persons charged to implement the directives in the schools.

17.3     On October 14, 2002, the Plaintiff advised the complainant in response to his inquiry that the Plaintiff would work with the Management Committee and school principals to ensure that “Christmas Concerts” are renamed, before undertaking any consultation with members of the Management Committee, Trustees, principals or other persons.