Friday, July 6, 2018

Paderewski Society Home battle continues

The Paderewski Society Home for seniors in St. Catharines, Ontario, is a nicely kept residence where seniors from Polish background can spend their twilight years. It was the dream of one man, Mr. Leo Skorski, a Polish immigrant to Canada, who worked hard and did well for his family. Leo wanted to find a way to give back to the community which gave him and his family so much. As a result, the Paderewski Society Home came to life providing a clean well run seniors residence.

Today Leo Skorski, a man in his early 90's, sharp and full of life as ever, continues a fight which began in February of 2014. After the Paderewski was built and all the legalities completed Skorski served as the Board President for several years, transferring his uncompromising integrity and honesty from his personal and business life to the running of the seniors home. Eventually, Skorski became a resident at the Home and as the by-laws of the Home required, he had to step down from his position as the President of the Board of Directors. Although he stepped down as president he had not relinquished his concerns as to how the Home was run.

By 2009 the questions surrounding the actions of the Board of Directors of the Paderewski and the building manager Stella Fensom had grown immensely for Skorski, he enlisted the help of friend and Queen's Council, Mr. Malte von Anrep from the law firm of Lancaster, Brooks and Welch to find satisfactory answers. For some five years, Malte von Anrep on behalf of his friend and client made attempts to find satisfactory answers to the serious questions raised. The solicitor representing the Paderewski, Rachel Slingerland of Martens Lingard LLP, provided responses that to Skorski seemed ambiguous at best. Numerous attempts at communication with Niagara Regional Housing who funds over 90% of the operating budget of the Paderewski Society Home equally proved fruitless to Malte von Anrep and Leo Skorski.

Finally, in late 2013 Skorski was introduced to me, publisher of Mayorgate by Niagara Regional Councillor Andy Petrowski. Interviews with Leo Skorski and his lawyer Malte von Anrep, attempts at obtaining comment from Paderewski Building Manager, Stella Fensom which had been left unanswered, reviewing dozens of documents including responses by Niagara Regional Housing; all provided the basis for an article. Prior to publishing, I had contacted the Retirement Homes Regulatory Authority – a provincial body – relating to matters affecting seniors and the operation of seniors' residences. In addition to the RHRA, I contacted the Minister for Seniors Affairs seeking advice on the issues raised by Leo Skorski.

An article titled, 'Seniors Languish in Intimidation' was published in late January 2014. February saw three Notice of Action documents prepared and served by lawyer, Rachel Slingerland of Martens Lingard LLP claiming defamation. The three recipients were: Leo Skorski, Alexandra Davidoff, daughter of Alexander Davidoff, and Alexander Davidoff, publisher of Mayorgate. It was no surprise that questions raised in the article by Leo Skorski needed to be silenced but Alexandra Davidoff had no connection to the article. Her only connection to this website – Mayorgate – was to produce as an artist on occasion caricatures to articles. This was a clear attempt at intimidation and nothing else.

Once the Notice of Action was delivered the games began and continued for over three and a half years. Paderewski's lawyer, Rachel Slingerland, attempted to stall or stop a forensic audit from being conducted, she attempted to refuse to have Paderewski Board President, Sabina Glowacki from being questioned under the Examination procedure. Most notable of all was the refusal by Rachel Slingerland to examine Alexandra Davidoff as part of the Examination for Discovery process. And the refusal was clear, Slingerland knew that no evidence existed against Alexandra Davidoff.

Then in 2017, Rachel Slingerland, of Martens Lingard LLP walked away from the Paderewski as clients and a new lawyer took over the baton. Taking over the carnival was lawyer Zijad Saskin of Broderick and Partners LLP. A trial date was finally set and the trial judge was Justice J.R. Henderson.

It was a trial that lasted nine days, beginning on July 31st 2017 with testimony provided by President of the Board Sabina Glowacki, Board Member Tony Sotola, Building Manager Stella Fensom and Forensic Auditor Robert Forsyth. At question was the issue of Defamation and did the defendants harm the reputation of the Paderewski Society Home by making comments that were absolutely untrue in the article published on Mayorgate.

Defamation Law has changed dramatically since the Supreme Court decision in Grant v. Torstar Corp, 2009. Until this decision, the protection of reputation was the key to defamation action. Now a new defense had been brought forward that of responsible communication about matters of public interest.

A trial is pretty much like a game, and that is not said with any disrespect for the law or our system of justice; Law and its administration is a key component to a democratic society, still, the analogy presented is hard to ignore. The key players are the lawyers who do not play for any permanent team, their companies are nothing more than agents. Their mantra is in the best interest of the client, and as long as they are paid that is apparently the only rulebook.

In this case, the best interest of the client involved the malicious and vexatious prosecution of an individual even when both lawyers were fully aware that no evidence existed. Rachel Slingerland of Martens Lingard issued her Notice of Action in February 2014 and was immediately told that the defendant, Alexandra Davidoff, had no involvement with the Mayorgate website or the articles written and published. Rachel Slingerland had to have a motive for this act, after all, she is supposedly university trained and had passed the Bar.

Rachel Slingerland left the firm Martens Lingard and another lawyer from Broderick & Partners LLP, Zijad Saskin took over the file as the Paderewski lawyer. Saskin in taking the file would have had to review everything and would be fully aware that the action against one of the defendants was nothing more than intimidation but apparently the law mattered little to Zijad Saskin. On August 3rd 2017 the morning of the fourth day of the trial Justice J.R. Henderson said, “First of all, with respect to the Plaintiff's case against Alexandra Davidoff, in my view, there is no evidence that has been presented by the Plaintiff at this trial that would justify the claim against this defendant. Therefore the action against Alexandra Davidoff is dismissed.” (as per official transcript by Carol A. MacLean, Certified Court Transcriptionist).

Moments prior to dismissing the action Justice J.R. Henderson said, “I certainly have a question as to the evidence against Miss Davidoff,” to which Zijad Saskin representing the Paderewski Society Home responded. “As, I mean, as far as I'm concerned Your Honour, I, I would agree with your finding that there is no evidence against Miss Davidoff and as far as I am concerned, I would consent to an order dismissing the action against Miss Davidoff.” (from trial transcript by Carol A. MacLean, Certified Court Transcriptionist).

The trial continued with a judgment by Justice J.R. Henderson provided on the 3rd of November 2017. After reading the reasoning for judgment one can't help but burst into a rendition of the well-known song by Meatloaf, “Two Out of Three Aint Bad.” In this case, the plaintiff is a non-profit corporation, run by a volunteer board of directors, and “funding for the operation comes from NRH,” (page 3, paragraph 11, Justice J.R. Henderson, Reasons for Judgment – Introduction). Simply put the plaintiff, Paderewski Society Home, is a non-profit organisation solely funded by public money granted through a regional government body, the Niagara Regional Housing Authority.

At trial were three defendants: first was Leopold Skorski, a retired and successful businessman, who came up with the concept of a seniors' home for individuals of Polish heritage. He raised the financing, completed all the government red tape and built the Paderewski. He then served as the first president of the Board from its opening in 1991 to July 2007. Defendant Alexander Davidoff, the publisher of Mayorgate, interviewed Leo Skorski, then his lawyer Malte von Anrep, Q.C., of Lancaster, Brooks & Welch, gathered documents from various sources particularly the NRH and the plaintiff's legal representative. The third defendant; Alexandra Davidoff, had the action dismissed against her by Justice Henderson.

Skorski raised a number of questions about the monthly financial statements, tenant concerns, and the operation of the Paderewski Home. He enlisted the aid of Malte von Anrep, Q.C., and took these concerns to Niagara Regional Housing. At best he saw the responses he got as inadequate, Skorski then turned to Mayorgate in an attempt to bring public attention to the serious issues he felt were left unanswered. Justice Henderson at paragraph 6 in his decision states, “The Mayorgate article is the essence of the complaint in this action.”

Defamation Law is based on the principle that the plaintiff must prove that the words were reasonably capable of a meaning that can injure a plaintiff's reputation, and Justice Henderson says as much in paragraph 20 of his decision. At paragraph 147, Justice J.R. Henderson states: “I must consider the nature of the reputation that has been lost. In my view, given the financial irregularities, the Board's mishandling of Skorski's complaints, and the Board's questionable conduct at the AGM, the reputation of the Paderewski Home has been tarnished by its own actions. This was not a pristine well-run organisation at the time of the publication of the Mayorgate article.”

Further at paragraph 146, Justice Henderson writes, “I must look at the conduct of the plaintiff. In my view, Skorski was right to confront the Board about financial irregularities, but the Board mishandled and ignored his complaints. If the Board had reasonably considered Skorski's criticism, these matters may not have escalated to the point of the Mayorgate article. That is, Skorski went to the media only after his criticisms, some of which were accurate, had been ignored by the Board and the public authority.”

Then at paragraph 144, Justice Henderson writes, “given that there is public funding of the Paderewski Home, the allegations of tenant abuse may affect the plaintiff's source of public funds, and may also affect its reputation in the community to the extent that possible private fundraising may be suppressed.” What private fundraising is Justice Henderson eluding to when at paragraph 11 he confirms that the funding of the operation is provided by Niagara Regional Housing? At paragraph 146 he writes that Skorski had been ignored by public authorities, and by “public authorities” he meant the NRH, (Niagara Regional Housing). Several exhibits had been provided at trial, such as the letter from NRH Chair Shirley Cordiner where supposedly NRH staff conducted investigations and found nothing wrong at the Paderewski. The most alarming of all was a copy of the Paderewski Home Minutes of the Board of Directors Meeting of November 13th 2013, where it states, “Ms. L. Small from NRH visited the office on November 6, 2013” and then on page two, “Ms. Small suggested that the board again consider taking legal action against Mr. L. Skorski for harassment.”

Paderewski Society Home Minutes, November 13, 2013, part of trial exhibit #3, at tab L and on public record

There is a great deal more to question in the Justice Henderson decision. At trial, evidence had been provided by Forensic Auditor Robert Forsyth who had conducted an audit of the Paderewski Home. Forsyth testified that he felt on a balance of probabilities that there had been civil fraud, and in the opening to paragraph 66 Justice Henderson writes, “I specifically accept Forsyth's opinion that the Board violated its own internal Purchasing and Tendering Policy (PTP) in relation to the GFC contract.”

Through paragraphs 68 to 72 Justice Henderson discusses the GFC contract that spiraled to some $30,000. At paragraph 69 Justice Henderson writes, “I agree with Forsyth that this transaction is very suspicious.” Then further, “I also agree that the acceptance of the original GFC repair bid constitutes a violation of the plaintiff's own PTP.” At paragraph 70, “This again is a violation of the PTP of the plaintiff.” then again in paragraph 71, “Again the Board violated the plaintiff's own PTP” and finally paragraph 72, “Accordingly, I find the plaintiff violated its own internal regulations and failed to operate as directed by the NRH, with respect to the GFC contract.”

Following discussions of the GFC contract, Justice Henderson moved to the issues of Glen Paul, “the manager's carpenter”. In paragraphs 76 to 86 Justice Henderson dissects the contract which amounted to over $10,000. He begins writing again, “This is a clear violation of the PTP” at paragraph 76, then he says that Stella Fensom, the building manager, claimed that the privacy screen contract was a custom job and could only be done by Paul, to which Justice Henderson adds, “but those reasons were never recorded, and in fact are clearly untrue.” Further at paragraph 78, Justice Henderson writes that Fensom “deviated from the proper rules in so many ways, and then failed to disclose that she had a connection to the contractor is extremely suspicious.”

Justice Henderson raises the fact that the directives of the NRH were violated by Stella Fensom and the Board of the plaintiff in paragraphs 79 and 80. In paragraph 81 he begins with, “there are suspicious circumstances surrounding the payment to Paul,” then he writes at paragraph 84, “Finally, and significantly, the entire Paul contract is suspect because Paul is the brother of Fensom's daughter-in-law. Moreover, despite questions from Skorski and from Forsyth during the investigation, Fensom denied that she had a family connection to Paul until shortly before the start of the trial. I accept Forsyth's view that the fact that Fensom deviated from the proper rules in so many ways, and then failed to disclose that she had a connection to the contractor is extremely suspicious.”

Justice Henderson states Forsyth testified that there had been civil fraud but that he did not accept Forsyth's ultimate conclusion that fraud occurred. He said, “the missing elements of civil fraud are the proof of a loss to the victim (plaintiff) and the benefit to the fraudster (Fensom).” It can be taken then that Justice Henderson saw the Board of the Paderewski as the possible victim and building manager Stella Fensom as the fraudster.

Robert Forsyth provided lengthy testimony at the trial, and on page 9 of the trial's transcript it reads: “A Supreme Court case, a judge summarized four elements of civil fraud. Here I'm going to use the words Paderewski and Ms. Fentom [sic], Fensom. So a false representation was made by Ms. Fensom or somebody else in, in Paderewski. Some knowledge of that, that representation being false was known to, they call them the defendant. The false representation caused someone to act and there was a loss.” The Supreme Court case Forsyth referred to was from Bruno Appliance and Hryniak. Further at page 40 of the transcript, Forsyth says, “As a civil expert, I can deal with what I'm given but I don't have the power to compel bank statements. I don't have the power to, to speak to all of the contractees and distant people. I could only speak to Ms. Fensom and the Board so I could not follow up on things that I might otherwise have done.” He continued in response to a question by Malte von Anrep, “What I had was consistently being told he was met at the Royal Canadian Legion. There was no connection. There had been no situation where they met socially other than I think it was at Cat's Caboose, and at other places. That, that's what I was given to understand. Well, now there's a connection, a connection that seemingly was denied. So, first of all, that tends to make me even more dubious of any explanations offered by Ms. Fensom. Secondly, if, as I understand it, Ms. Fensom's son was married to the sister of Paul, that in a way provides motivation. It supplies the missing link.”

Forsyth further said, “on the balance of probabilities, makes me conclude that there was fraud, using my earlier definition of fraud, where now – excuse for me for one second – for now I, I know that there's a false representation. I know that, that Ms. Fensom knew or ought to know that, that there is some facts, material facts that weren't there. Paderewski did the contract because of Ms. Fensom's providing the information and that there was a loss. So I have apparently all the elements of a civil fraud.”

Robert Forsyth has a Masters in Social Psychology, an MBA in Management Science. He is a Certified General Accountant, a CFI, and in 2000 was certified as a forensic investigator. Since 2003 all his work has been in forensic accounting. He has been involved in ninety investigations or consulting assignments either for the Government of Ontario Ministries or for various lawyers in private practice, and an expert witness in ten court or arbitration cases. Forsyth was contracted by Niagara Regional Housing to prepare and deliver seminars on fraud and ways to prevent it and how to audit and investigate for fraud. Justice Henderson did not accept Forsyth's conclusion on fraud at the Paderewski.

Justice Henderson would not accept the word fraud, he preferred to say that the transactions were very suspicious and that the PTP had been breached. Then he turned his attention to the Annual General Meeting in his decision. Beginning with paragraph 92 through to 95 he dissects the By-Law of the plaintiff, the Paderewski, and the process that provides for the election of the Board. At paragraph 96 Justice Henderson says, “Accordingly, I accept that Skorski and his group had reason to believe that they were eligible to participate in the meeting, vote in the election, and run for office, provided they were not tenants of the Paderewski Home.” This has been said by Leo Skorski for several years and the facts he provided for the original article.

The conclusion to paragraph 96 was more of an eye-opener, “I do not make any finding as to whether the results of the 2013 election were valid, but I find that the decision by Glowacki to terminate the meeting, and prohibit Skorski and his group from participation was an irregularity in the process.” So once again Justice Henderson agrees with Skorski and now that's two out of three, and Meatloaf is about to sing... but wait, this is Justice Henderson.

In relation to potential tenant abuse or neglect, paragraph 97 shows where Justice Henderson was going. He writes, “The only tenant of Paderewski who testified at this trial was Skorski, and he testified that he did not live in fear at the Paderewski Home and that he had not been the subject of any abuse. Thus, any evidence of abuse of tenants by a Board member or by Fensom is hearsay evidence, and must be treated with caution.”

Hearsay evidence is tricky and when a judge makes such a statement it would be expected the statement is carried to both sides, here in this case, it did not appear to be by Justice Henderson. First, Skorski had fought for over ten years to bring the truth to the surface, and at age 91, he was threatened with eviction. Three main individuals: Mr. Janusz Zelichowski, Ms. Helen Cholawski and Mr. Dolbaczuk who spoke out and provided written statements, had all passed away before the trial had begun, others were hesitant to speak to an outsider.

Tony Sotola testified regarding the incident with tenant Zelichowski. At paragraph 104 Justice Henderson writes, “I find that Sotola did not do anything wrong to start the confrontation and that Zelichowski inappropriately responded by striking Sotola with his cane.” During his testimony Board Member Tony Sotola was asked by Malte von Anrep, “I'm not asking whether they convinced you to call the police or not, I'm saying to you, suggesting to you that nowhere in either your version of the events or Mr. Zelichowski's version of the, of the events, is there any mention of you being struck by a cane. Isn't that a fact?” Tony Sotola responded with, “That's a fact.”

In the end, Justice Henderson says at paragraph 116, “the statements in the Mayorgate article about tenant abuse and neglect are not substantially true,” and at 117 “I also find the statements in the Gestapo letter are not justified.” The meaning of the word substantially used by Justice Henderson implies that he saw some truth but not largely, mainly or greatly. Yet more alarming was the label Justice Henderson put on a plea for help from a 91-year-old for his fellow senior tenants.

Henderson is a Justice within the Canadian judicial system, a system built on the principles of the Charter of Rights. Canada does not accept any form of labelling in our society; be it on race, religion, or beliefs. Justice Henderson took that plea or help by seniors and labelled it “the Gestapo letter,” and then used that label eight times throughout his written judgment. Was it for effect or impact? In paragraph 6 Justice Henderson writes, “the plaintiff relies on one letter written by Skorski to NRH in early 2012, hereinafter called “the Gestapo letter”.” That statement by Justice Henderson is not “substantially” true as the letter is addressed to “Mr. Mayor, Mrs. Beckwith,” and its content primarily refers to the Mayor.

The mere connotation of the label “the Gestapo letter” brings to mind the horror of Nazi Germany, antisemitism and the most horrific abuse of human rights and murder. In the Statement of Claim by the plaintiff there is no mention of the letter at all. During trial the lawyer for the plaintiff, Zijad Saskin, referred to the letter and did not call it a “Gestapo letter.” Defendant Leo Skorski explained that many of the tenants are survivors of the Nazi occupation of Poland. He explained that it referred to in the sentence, “We have a genuine complaint and proof of the “Gestapo” style of treating helpless seniors,” actions taken by the Manager and a questionnaire circulated among tenants.

Out of the five paragraphs of this letter four begin with Mr. Mayor, and reading the letter there was no expression of anger or hatred which would be associated with such a label as Justice Henderson slapped on it. The letter finishes, “You have [You refers to Mrs. Beckwith of the NRH] the power to intervene in our situation and restore a healthy atmosphere and let us seniors live the rest of our lives in dignity and happiness.”

At the end of his decision Justice Henderson writes, “I find that Skorski in particular had good intentions” and “similarly, I find that Davidoff had good intentions as he believed that Skorski had raised issues of public concern.” The real crunch comes in paragraph 147 as Justice Henderson writes, “In my view given the Board's questionable conduct at the AGM, the reputation of the Paderewski Home has been tarnished by its own actions. This was not a pristine, well-run organisation at the time of publication of the Mayorgate article. I find that the unfounded complaints of tenant abuse reduced Paderewski's reputation, but other conduct by the plaintiff has also undermined its reputation.”

With such a conclusion defendant Leo Skorski who fought for well over ten years for the truth was asked for a comment, his response was: “I was very disappointed, because the opposite side was under oath did not tell the truth, regardless that I presented three written proofs and a forensic audit proof that fraud was committed, Justice was not served.” An opportunity for comment was provided to Skorski's lawyer, Malte von Anrep, who refused to respond. The lawyer for the plaintiff, Zijad Saskin was sent an email with a number of questions for his clients and an opportunity to provide comment on the proceedings completed before Justice Henderson. No response has been made available by the plaintiff lawyer Zijad Saskin, Stella Fensom nor by any member of the Paderewski Board of Directors.

Justice Henderson ruled in favour of the plaintiff and Meatloaf left the building with the lyrics of his song, 'Two Out of Three Aint Bad' in his hands. The ruling by Justice J.R. Henderson is under appeal at the Ontario Court of Appeal and this saga has not found an end as yet.