The Defendant filed the Motion to strike the   Statement  of Claim  as disclosing no reasonable  cause of action   which has  no  Affidavit  signed and sworn by RECO and as such is simply pure fiction. The Defendant  repeated the false information  created during the administration process. It was Plaintiff intention to cross examine the member ( staff) of RECO  on the affidavit  for the motion. However , no member of the staff from RECO was prepared to sign and be sworn on their allegations. The following are the major allegation of the Respondent

This proceeding is not about   RECO qualified privilege but about case of RECO’s  qualified privilege  ( Statute )   defeated because  the limit of the duty and  interest have been exceeded and  the dominant   motive for publishing the statement  is actual or express malice, and that the defendant  has written dishonestly , and  knowingly   with  reckless disregard for the truth.  Details of this matter is presented in further part of this statement

  Estoppel law – does not apply

The requirements for issue estoppel are three- fold:

the same question must have been decided ;

the judicial decision which is said  to create  the estoppel must have been final

The parties to the judicial decision, or their privies, must be the same persons as the parties to the proceedings to the proceedings in which the estoppel is raised, or their privies.

  First stage of litigation was   exactly as described above:

  There were two proceedings

  RECO File No. 025055

 Ed Glanc v Bohdan Szewczyk

RECO was acted as Tribunal, quasi legal authority.

There is different question now than it was in previous stage:

 The question Nr 1   was to establish the professional misconduct of Appellant Bohdan  Szewczyk

There are different parties involved   :

Bohdan Szewczyk v   Real Estate Council of Ontario (instead of Mr. Ed Glanc)

 Question  Nr 2  : is qualified privelage defeated ?

Therefore the estoppel law does not apply

CAUSE OF ACTION FOR MISFEASENCE OF PUBLIC OFFICE

Respondent, RECO committed the tort of misfeasance in public office which in this case is intentional tort whose distinguish elements are twofold:

deliberate unlawful conduct in the exercise of public functions ;and

Awareness that the conduct is unlawful and likely to Injure  Appellant Bohdan Szewczyk.

 The Appellant proves that the tortuous conduct was the legal cause of his injuries in the form of world wide defamation on internet and that the injuries suffered are compensable in tort of law.

Statement of Claim should be struck as Frivolous, vexatious or abuse of process  Respondent did not present any fact but citation of Rules of Civil Procedure.

The Respondent statement is not supported by facts and his law cases are not relevant to this proceeding.  Appellant presents relevant  case of Pavlus v Pope-

Court of Appel fro Alberta dismissed the Motion:

The order declaring Pavlus vexatious litigant and enjoining him from commencing further proceedings without leave of the court is more difficult. The Chambers judge granted an order that was broader the relief requested. He declared Pavlus to be a vexatious litigant and enjoined from filing any legal proceeding in either the Court of Queen’s Bench or the provincial Court without leave of a judge of such court.

 In the result, we uphold the order dismissing the statement of claim as vexatious and an abuse of process.  We set ESIDE THAT PART OF THE ORDER DECLARING Pavlus a vexatious litigant and prohibiting from commencing any action in the Court of Queen’s Bench or the Provincial Court of Alberta without obtaining leave. We also set aside the order for solicitor and client costs. These being mixed success, each party will pay its own costs.

Court of Appeal of Alberta Dec 13 2004.

In this case  none of presentations  made by Respondent are  supported by facts There is no affidavit presented in the court under oath.  Position of the Defendant is particularly challenged by his criminal activity in the form of fabrication of false documents

Bohdan Szewczyk v Real Estate Council of Ontario – the case is about the defamation in which RECO completely destroyed Bohdan Szewczyk reputation and his life time achievements it is also about the abuse and misuse of   Regulator’s power.Respondent admitted all wrong doing during the legal procedure  of  Superior Court of Justice  in Toronto Court file  No. 05-CV- 297852  PD1 and in this Appeal

The principal question to be answered in this appeal is whether the RECO public statement and administration procedure took place on an occasion of qualified privilege.  If so it remains to be determined whether or not the privilege was exceeded and thereby defeated.

 The following is the proof of close relation of both cases.

11.01  The Reputation of the Individual

..To most people, their reputation is to be cherished above all. A good reputation is closely related to the innate worthiness and dignity of the individual .It is an attribute that must, just as much as freedom of expression, be protected as society’s law.

…..  It is that good repute which enhances an individual’s sense of worth and value. False allegation can so very quickly and completely destroy a good reputation .A reputation tarnished by libel can seldom regain its former luster. A democratic society, therefore, has an interest in ensuring that its members can enjoy and protect their good reputation so long as it is merited.

 In the present case, consideration must be given to the particular significance reputation has for a real estate agent. The reputation of a real estate agent is of paramount importance to clients, to other members of profession. A real estate agent‘s profession is founded and maintained upon the basis of a good reputation for professional integrity and trustworthiness.

done to it can never be wholly undone, and therefore the stigma so unfairly created will always be with the Appellant, Bohdan Szewczyk.

 When the details of this affair will fade  from memory, what will remain is hundred of thousand of computers loaded with false RECO publication and ready to present it again and again, and Bohdan Szewczyk will remain in the minds  of many people in Canada  and around the world  ( publication was made on page of GOOGLE in 2 languages – English and Polish , Yahoo,  AOL, ZOOMINFO)  that he was  the centre of scandal – and  even was acted as criminal  defrauding client’s  funds .

MALICE

Actual malice in United States law is a condition required to establish libel against public figures and is defined as "knowledge that the information was false" or that it was published "with reckless disregard of whether it was false or not." This is only the definition in the United States and came from the landmark 1964 lawsuit New York Times Co. v. Sullivan that ruled that public officials needed to prove actual malice in order to recover damages for libel. Since proof of the writer's malicious intentions is hard to provide, proof that the writer knowingly published a falsehood was generally accepted as proof of malice, under the assumption that only a malicious person would knowingly publish a falsehood. In the Sullivan case the Supreme Court adopted this term and gave it constitutional significance, at the same time defining it in terms of the proof which had previously been usual.Actual malice is different from common law malice which indicates spite or ill-will.

 RECO’S  Qualified privilege (Statute)- defeated

.. privilege attaches to the occasion upon which the communication is made, and not to communication itself.  As Lord Atkinson explained in Adam v. Ward (1917)…:

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

The legal effect of the defence of qualified privilege is to rebut the inference, which normally arises from the publication of defamatory words or false statement, that they were spoken with malice.  Where the occasion is shown to the privileged, the bona fides of defendant is presumed and the defendant is free to publish, with impunity, remarks which may be defamatory and untrue about the plaintiff.

However, the privilege is not absolute and can be  defeated if the dominant   motive for publishing the statement  is actual or express malice   -Harrocks v. Lowe – 1975  p 149

Ref.: Appellants book of Authorities  Tab 6,Hill v Church of Scientology Par 144page   34

RECO dominant motive is to remove  Competitors of RE/Max from the real estate market .

RECO Reasons for Decision: p 2

In its Allegation Statement, RECO alleged that Szewczyk had breached Rules 1, 2, 3, 4,

6, 10, and 45 as a result of the following acts and omissions on Szewczyk’s part:

1) Failing to enter into a written representation agreement with Buyer as soon as

practicable after Buyer became Szewczyk’s client. RECO alleged that at no time did

Szewczyk explain agency relationships to Buyer and, notwithstanding that Szewczyk had

same day that Buyer accepted the seller’s $429,000 “counter-offer” for the Property) that

Szewczyk entered into a written representation agreement with Buyer;

Rules 1,2,3,4.6,10 and 45  have  self evident merit and in confrontation with fact that perfect service delivered by Appellant, Bohdan Szewczyk to client Ed Glanc made Mr Ed Glanc  a profit in 2 years over million dollars –is obvious proof of actual malice as being dominant motive in false publishing made by Respondent RECO. RECO Allegation is false

2) Szewczyk’s failed to honour his contractual commitment to pay the $4290 rebate to

Buyer

 Respondent failed to disclose that this note is illegal: REBBA section 22 and Competition Act C 34 par. 50 and accordingly, Appellant refused to break the law.

 Malice is commonly understood   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  -  Taylor v. Despard – 1956

Szewczyk also suggested that the opposite party [e.g. Buyer/Ed Glanc  and/or Broker/ Re/Max were organizing the RECO hearing in advance of his court case. Finally, Szewczyk claimed

That RECO had been infiltrated by Broker/Re/Max such that RECO was “ruled by Broker / Re/Max” and that all of Szewczyk’s complaints against Broker/Re/Max were ruled in favour of Broker/Re/Max.

Malice may also be established showing that the defendant has written dishonestly, or in knowing or reckless disregard for the truth. -Netupsky v.Craig – 1957

Position of the Defendant is particularly challenged by his criminal activity in the form of fabrication of false documents.

After Szewczyk’s advised Buyer that he could not pay the rebate, Szewczyk attempted

To confuse the issue and make a “false record” of his dealings with Buyer (Ed Glanc ) The false

Record allegedly included Szewczyk purporting to make a donation on (Ed Glanc) Buyer’s behalf to a local church, and suggesting that the payment of the rebate was tied to Buyer agreeing to have Szewczyk list Buyer’s existing property in Mississauga.

As noted above, that documentation included

Information suggesting that a $500 donation to a local church had been made by

Szewczyk on behalf of Buyer’s family. Buyer claimed that at no time did he discuss any

Such donation with Szewczyk. In the material which Szewczyk provided to RECO,

Szewczyk indicated that the $500 donation would result in Buyer having his name appear

On a plate (e.g. on the wall in the Church). In his letter of complaint to RECO, Buyer

Stated that he found it offensive that Szewczyk was mixing business and religion and that

He had never asked for a donation to be given to the church in his name. The Panel has

Concluded that Szewczyk’s actions in this regard were not simply unprofessional; they

Were personally intrusive. Szewczyk had no right as a real estate agent for Buyer to take

It upon him to make a donation to a church in Buyer’s name without Buyer’s knowledge

And consent, especially since Buyer’s name was to be published at the church. Szewczyk

Was indeed mixing business and religion.

Similarly, Buyer made it clear that at no time did he have any agreement or

Understanding with Szewczyk such that Szewczyk would be listing the property in

Mississauga owned by Buyer. Buyer said he was surprised when he found an “Exclusive

Listing Agreement” in his mailbox. That Listing Agreement identified Buyer as the

Seller of property in City and Szewczyk was named as the Listing Broke”

All alegations are untrue.   Appellant followed verbal agreement with client Ed Glanc and there fore prepared the listing for sale.  There is no document about relation of the gift $ 500 to church  Although   the name of client was immediately removed and never made public by Appellant or church - RECO was presenting it its prosecution to the Panel 1 year later,  and three years  later in

both Court of Justice and Court of Appeal. Presenting thing which never materialized as existing fact is and obvious malice , malice which a dominator of whole RECO’s  publication .

Qualified privilege (Statute) may also be defeated when the limit of the duty or interest have been exceeded - Law of defamation in Canada.

.. ”The fact that the occasion is privileged does not necessarily protect all that is written on the occasion. Anything that is not relevant and pertinent to the discharge of the duty or the exercise of the right or the safeguarding of the interest which creates the privilege will not be protected.”

 In all parts of the statement RECO is hiding the name of Re/Max whose associate Mr. David Rossi is permanent Director of RECO. Re/Max is using umbrella of RECO‘s qualified privilege (statute) to eliminate the competition from the real estate market. This is 21 century of criminal activity conducted by Re/Max under protection of Regulator‘s qualified privilege.  During   prosecution and both legal proceedings neither RECO nor  its Solicitor disclosed the facts that Mr. David Rossi is acting as lobbyist  for the interest of Re/Max when in the same time is acting as Director of RECO, the Regulator.

In February 2003, as a result of an agreement with the Competition Bureau and Re/Max Ontario-Atlantic Inc., Re/Max Western Canada (1998) and Re/Max International Inc., the Federal Court of Canada issued a prohibition order under subsection 34(2) of the Competition Act requiring the companies to change certain pricing and advertising policies to address concerns under the price maintenance provisions of the Act. Court file No.: 02-CL-4621. The prohibition order also prevents the companies from doing the following:

prohibiting their franchises or sales associates from setting independent commission rates or advertising such rates;

attempting to influence commission rates upwards by any means; and

Pressuring independent publishers to refuse advertising from any Re/Max franchise or sales associates because of the commission rates advertised.

The prohibition order further requires the companies to pay the Crown’s legal costs and was fined   the highest fine in Ontario - $250,000.00

Neither Ministry nor Real Estate Council of Ontario addressed the problem of thousands of real estate agents removed from the market by Re/Max criminal activity.

 In other words, the information communicated must be reasonably appropriate in the context of the circumstance existing on the occasion when the information was given.

Occasion was exceeded because the defendant’s comments went beyond what was germane reasonably appropriate.

 “He claimed that the surgery had adversely affected his throat such that he would not be able to

Communicate verbally very well and that his doctor had advised him to avoid “extensive

Verbal communication” for at least two (2) months. Certain individuals (presumably doctors) were named by Szewczyk in the letter and telephone numbers for them were provided.

 ( derogatory remark is addressed to Mrs. Jakubowska Phd  Med Dr. !)”

The principal question to be answered in this appeal is whether the RECO public statement and administration procedure took place on an occasion of qualified privilege.  If so it remains to be determined whether or not the privilege was exceeded and thereby defeated.

“Documentation before the Panel, as well as the testimony of Buyer, indicated that there is

A pending small claims action by Buyer against Szewczyk for the unpaid rebate of $4290.

In his responding letter to RECO, Szewczyk advised that his Statement of Defence in that

Small claims action should be considered his response to Buyer’s complaint to RECO.

The Panel notes that Szewczyk has also counterclaimed against his former client, Buyer,

For $10,000. In his Defence and Counterclaim,”

The record  demonstrate that the client Ed Glanc filed  the  Statement of Claim in Superior Court of Justice,   Brampton, Court file No.: BN 02-10411 and RECO  did not wait for the Court order which dismissed the case , and  RECO published false statement  :

IN THE MATTER OF A DISCIPLINE HEARING HELD PURSUANT

TO BY-LAW NO. 10 OF THE REAL ESTATE COUNCIL OF ONTARIO

BOHDAN SZEWCZYK     …………….   REASONS FOR DECISION

 This said, it is conclusion that RECO conduct far exceeded the legitimate purposes of the occasion.  The circumstances of this case called for great restraint in the communication of information concerning the RECO disciplinary proceeding and legal proceeding launched by RECO and client Ed Glanc against Bohdan Szewczyk.   Having hired experienced lawyer Mr. Snell, RECO ought to have taken to confirm the allegations that were being made.  This is particularly true since  RECO has been aware  of Ed Glanc filed the  Statement of Claim  against Bohdan Szewczyk in Small Claims Court of  Superior Court of Justice in Brampton. In those circumstances RECO was duty bound to wait until the legal procedure in the court of law was completed (Case BN- 02-10411- was dismissed!), before launching such a serious attack on Bohdan Szewczyk’s professional integrity.  RECO, quasi legal authority, and its lawyer Mr. Snell failed to follow the Estoppel law of Canada, which is not allowing carrying two identical investigations.  RECO failed to take either of these reasonable steps. As a result of this failure, the permissible scope of comments in RECO publication was limited and the qualified privilege (Statute) which attached to its remarks was defeated. The  Court of Law is the  highest  standard  and the Appellant , Bohdan Szewczyk  was acquitted  ( case was dismissed )  that means  that he has declaration of innocence . Is the whole justice system going to  be superseded by opinions based on hearsay, innuendo rumours  ?

The false publication was made on Internet on RECO page and on all world wide public pages known as GOOGLE, ZOOMINFO, AOL, YAHOO in two languages: English and Polish.  This constituted  the widest possible dissemination of grievous  allegations of professional misconduct that were yet to be tested in conduct of law in which the case was dismissed . RECO comments were made in language that portrait Bohdan Szewczyk in the worst possible light .This was neither necessary nor appropriate in the existing circumstances.  While it is not necessary to characterize RECO conduct as amounting to actual malice, it was certainly high- handed and careless. It exceeded any legitimate purpose the publication may have served.  RECO’s   conduct, therefore, the qualified privilege (Statute) that attached to the occasion is exceeded.

RECO’s penalty to RE/Max salesmen were 5 – 10 times smaller than High – handed penalty served to the Appellant, Bohdan Szewczyk. It  was done in purpose to overcome his possibility to handle payment of such  huge value and as a result to remove him from the real estate market.

 All Respondent’s law cases are not related to this proceeding.

 In trial proceeding page 25, line 25   Justice H. Sachs made summary: There is a lot of case law on this point which deals very specifically with these kinds of situation. I am just surprised it is not in your factum “

 Neither Justice nor the Respondent presented one case law supporting their position demonstrated in the Respondent factum.

Assessment of  general damages

 It has long been held that general damages in defamation cases are presumed from the very publication of the false statement and are awarded at large. These are sound principles that should be followed

The Application to the facts of this case

The consequences which flow from the publication of an injurious false statement are invidious.  The internet report on all major  sides  ( all GOOGLE, Yahoo, Zoominfo  , Zapraszam- In 2 languages – Polish and English )  must have had a lasting and significant  effect  on all who read it .  All who read the report can copy it in their computer memory and send it around the world. Readers are left with the lasting impression that Bohdan Szewczyk has been guilty of misconduct.   It would be hard to imagine a more difficult situation for the defamed person to overcome especially that his business is carrying the same name BOHDAN SZEWCZYK REAL ESTATE SERVICES.  Every time he  meets people , he will imagine that the people around him still retain the erroneous  impression that the false statement is correct  ( public at large does not know or understand or would believe that RECO is free to do any wrong doing  under protection of statute – as qualified privilege  !).   A defamatory statement can seep into the crevasses of the subconscious and lurk there ever ready to spring forth and spread into cancerous evil.  The unfortunate impression left by libel may last a lifetime. Seldom does the defamed person have an opportunity of replying and correcting the record in a manner that will truly remedy the situation. It is members of the community in which the defamed person lives and carry his business will be best to asses the damages.

The prosecution made by RECO was very carefully orchestrated. Members of The staff and hired for this case lawyer Mr. T. Snell prepared and fabricated   false document.  The panel was carefully chosen , the pre- hearing  meeting  was sabotaged  and penalty was  to Bohdan Szewczyk  10 times higher  than    other which were served to    - Re/Max salesmen .  Everything was done to remove Bohdan Szewczyk from the real estate business

13.03 Punitive Damages

 Punitive damages may be awarded in situation where the Respondent‘s misconduct is so malicious, oppressive and high – handed that it offends court’s sense of decency. Its aim is not to compensate Appellant, rather to punish the Respondent. It is in the nature of fine which is meant to act as deterrent to the Respondent and to others from acting in this manner.  This is a case when the combine award of general and aggravated damages would be insufficient to achieve the goal of punishment and deterrence.

The Application to the facts of this case

 There can be no doubt that the conduct of RECO in publication of the injurious ,false statement pertaining to its Bohdan Szewczyk was malicious. Its  publication was carefully planned  ( the names of client Ed Glanc and  especially RE/Max were removed and replaced by words “client “ and “broker “ accordingly  ) and carried out in the manner which ensured its widest possible dissemination in the most damaging manner Imaginable.  (Publication was done in two languages, English and Polish, in PDF and in open version to allow readers print it on the printer directly from computer. Considering that Bohdan Szewczyk real estate market mostly was in polish community – the allegation made by RECO was devastating. It was  said that Bohdan Szewczyk  had been guilty of breach of trust , his conduct  and behaviour was unethical, he did not protect and promote the client, did not disclose his role , did not prepare the written agreements, made misrepresentation and falsification of documents and that his conduct and behaviour was criminal. RECO’s  actions from the time of publication , throughout the trial in  Superior Courts of Justice in Brampton and  Toronto , and after  the trials , was rendered constituted  a continuing attempt to character assassination by means of statement which it knew to be false.

Respondent ,RECO in its conduct ,did not act with good faith – bona fides -because it fabricated false document and   actual malice was the dominant factor in its  publication

Respondent’s  Solicitor Mr. K. Perreira removed false document from the  Respondent Compendium for the Court of Appeal for Ontario Cnada.

 Both RECO and its Solicitor  K. Oereira  committed forgery sand therefore  criminal code applies :

            PART IX: OFFENCES AGAINST RIGHTS OF PROPERTY

               Forgery and Offences Resembling Forgery