Executive summary: key legal and evidentiary issues

• Patrick Maiani, former Executive Director of the Calgary Jazz Festival, sued Richard Sherry and John Bell for defamatory statements blaming him solely for the festival's 2010 cancellation.

• Defendants failed to attend trial and did not plead any defences such as qualified privilege or fair comment, leaving Maiani only required to satisfy the three-part test for defamation.

• Both defendants were deemed to have admitted key facts — including that Maiani had regularly reported finances to the Board — after failing to respond to Notices to Admit Facts.

• Evidence from the former Treasurer confirmed the defamatory statements were not fair or accurate, characterizing the festival's collapse as a collective failure rather than one person's fault.

• Statements published via press releases and media outlets impugned Maiani's competence and effectively ended his approximately 20-year career in the Calgary arts community.

• Neither defendant retracted their statements or apologized, and their litigation conduct over nearly 14 years was described by the Court as deplorable.

Background and the parties involved

Patrick Maiani served as the Executive Director of the Calgary Jazz Festival, operated by the Calgary Jazz Association (also known as C-Jazz), from the early 2000s until the festival's demise in 2010. He was a well-established and well-respected figure in Calgary's arts community, having held various roles as a performer and administrator for approximately 20 years. Richard Sherry was the Interim President of the Calgary Jazz Association in 2010, and John Bell was a member of the Board of Directors. After the 2010 Calgary Jazz Festival was cancelled, Sherry and Bell made public statements to the media blaming Maiani exclusively for the cancellation, citing what they considered to be financial mismanagement. Maiani brought a defamation action against them in the Court of King's Bench of Alberta. Claims against other individual defendants were settled and discontinued over time, and the Calgary Jazz Association itself had long since ceased operations.

Financial troubles and internal dysfunction

The Calgary Jazz Festival was in financial trouble in 2009, owing creditors significant sums of money. The situation was compounded when the Calgary Jazz Association failed to file the financial reporting required to maintain its charitable status on time, causing it to lose its opportunity for a casino fundraiser with the Alberta Gaming and Liquor Commission — an event anticipated to generate $60,000 or more in revenue. That reporting responsibility belonged to John Bell, who was removed from his position as Vice President in September 2009 as a result. In the spring of 2010, half of the Board of Directors resigned, including the President, and Sherry took over as Interim President. On April 5, 2010, Maiani provided the Board with a nine-page document titled "Executive Director's Report," which discussed fundraising, the budget, staff issues, the need for an audit, sponsorship arrangements and grant applications, and the preliminary line-up for the 2010 Calgary Jazz Festival. During the spring of 2010, there was tension amongst the Board and Maiani.

Cancellation of the 2010 festival and the defamatory statements

Maiani and several members of the Board of Directors resigned at the beginning of June 2010, though Maiani agreed to stay on in his role to provide stability for the festival, which was to take place in late June. On June 19, 2010, the Board held an emergency meeting to discuss whether to cancel the 2010 Calgary Jazz Festival. Maiani opposed cancellation because he believed it would be more damaging in financial and reputational terms than going ahead, and he believed the Association's problems would be resolved by ticket revenue and funding promised by sponsors and granting agencies but not yet received. Sherry and others on the Board disagreed and decided to cancel the festival. Late on June 19, 2010, the Association issued a press release in which Sherry stated the Board had been asking the Executive Director for a detailed rundown of expenses and cash flow for months, implying those requests had been disregarded. On June 21, 2010, the Calgary Herald published an article titled "Organizers pull plug on cash-strapped Jazz Festival at last minute," quoting Sherry alleging "financial mismanagement." The following day, the Calgary Herald published another article quoting Sherry citing "unaccountability, refusal to cooperate, making commitments on behalf of the organization without authorization, and a lack of transparency." Two days later, Fast Forward, a local arts and entertainment newspaper, published an article including a statement by Bell blaming many of the issues on Maiani. These statements identified Maiani directly or by clear implication and were also quoted in other publications and on Calgary radio.

Evidence contradicting the defendants' claims

The Court found the defendants' statements to be untrue. Both Sherry and Bell were deemed to have admitted — by reason of their failure to respond to Notices to Admit Facts — that Maiani had reported cash flow and expenses to the C-Jazz Board throughout 2009 and 2010 and had provided a detailed breakdown of expenses for the 2010 Jazz Fest months before the scheduled date of the event. Maiani testified that while he was responsible for booking musical acts, booking venues, and arranging sponsorships, he did not have signing authority for the Calgary Jazz Association nor was he responsible for preparing financial statements. Marci Gwynne, the Treasurer, was responsible for financial oversight and reporting. Gwynne herself testified that the statements by Board members to the media were not fair or accurate, stating: "If I were to blame anybody, it would be everyone involved" and "we were all in it together, basically." The Court agreed, finding that the cancellation of the 2010 Calgary Jazz Festival and the demise of the Calgary Jazz Association was a collective failure. A former Board member, Mr. Bartsch, similarly testified that the Association's financial situation had always been precarious.

The legal test for defamation and the Court's findings

The Court applied the three-part test for defamation from Bent v Platnick, 2020 SCC 23: that the words were published, referred to the plaintiff, and would tend to lower the plaintiff's reputation in the eyes of a reasonable person. Since the defendants did not attend trial and had not pleaded any defences, Maiani was only required to satisfy this test. The Court found that all three elements were clearly met. Sherry and Bell made their statements to media outlets knowing or intending that they would be published, the statements identified Maiani directly or by clear implication, and the statements deflected blame from themselves and the other members of the Board of Directors and scapegoated Maiani. The Court characterized the decision of Sherry and Bell to pin the cancellation on Maiani as "cowardly," noting that the Board of Directors was responsible for supervising the business of the Calgary Jazz Association and at all times maintained control of the organization's finances.

Damages, costs, and the outcome

In assessing damages, the Court considered the factors adopted in Hill v Church of Scientology of Toronto, [1995] 2 SCR 1130, including the plaintiff's position and standing, the nature and seriousness of the defamatory statements, the mode and extent of publication, the absence of any retraction or apology, and the whole conduct and motive of the defendants from publication through judgment. Prior to the defamatory statements, Maiani had worked in the Calgary arts community for approximately 20 years. Since the defamatory statements, he has not worked in the Calgary arts community and has pursued different lines of work out of the province. The Court found that the defamatory statements effectively ended his career as an organizer and administrator in the Calgary arts community. The Court found Maiani's proposed damages of $50,000 to be modest but appropriate, apportioning $40,000 to Sherry and $10,000 to Bell to reflect the fact that Sherry's statements were both more numerous and pointed with respect to Maiani. Regarding costs, the Court noted the action had taken nearly 14 years to get to trial, with the cause of delay mostly attributable to the failure of the defendants to engage in the litigation process in good faith, including Sherry's refusal to provide an email address for service and the defendants' failure to show up at trial after opposing pre-trial steps. The Court characterized their litigation conduct as "deplorable" and awarded a lump sum of $50,000 in costs, for which both defendants are jointly and severally liable. In total, Maiani was awarded $50,000 in damages — with Sherry and Bell being severally liable for $40,000 and $10,000 respectively — and a further $50,000 in costs.