Court File and Parties
CITATION: Kumar v. Khurana, 2017 ONSC 3386
DIVISIONAL COURT FILE NO.: 067/16
DATE: 20170602
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: HARDEV KUMAR aka HARDEV KUMAR KUKREJA, Plaintiff/Appellant
AND:
VINOD KHURANA, Defendant/Respondent
BEFORE: Corbett, Spies and Reid JJ.
PARTIES: Hardev Kumar aka Hardev Kumar Kukreja, Self-Represented Plaintiff/Appellant
Vinod Khurana, Defendant/Respondent
HEARD at Toronto: May 30, 2017
ENDORSEMENT
Introduction
[1] The Appellant, Mr. Hardev Kumar, appeals the decision of Mr. Justice Faieta dated December 16, 2015. Mr. Kumar affirms the findings by the trial judge on liability, but appeals the damages award. Mr. Kumar is seeking $1,000,000 in damages as well as pre-judgment interest from September 1, 2013.
[2] Mr. Kumar’s action was for damages for defamation and proceeded undefended after the Respondent’s Statement of Defence was struck out because he failed to provide particulars pursuant to a court order. When Mr. Kumar brought a motion for default judgment Justice Lederman ordered that a trial with oral evidence was necessary to properly deal with the issues.
[3] The undefended trial proceeded before Faieta J. who gave reasons for his decision; see Kumar v. Khurana, 2015 ONSC 7858. The trial judge found that certain statements made by the Respondent on Facebook and in private emails were defamatory. The trial judge ordered that the Respondent pay Mr. Kumar damages in the amount of $15,000 for general damages, $15,000 for aggravated damages and $2,000 for costs for a total judgment of $32,000. The trial judge did not award punitive damages.
[4] Before turning to the appeal, Mr. Kumar was asked why the formal judgment dated December 16, 2015, signed by the Registrar of the court, provides that the Respondent pay only $24,000. Mr. Kumar did not have an explanation for this and advised that he received the formal judgment from the court by fax. It seems clear that there is a typographical error in the formal judgment and so it must be rectified to accord with the Reasons for Decision of the trial judge. I will therefore consider this appeal on the basis that the damages awarded are as stated in the Reasons for Decision of the trial judge.
Issues on appeal
[5] Mr. Kumar raises two issues in this appeal:
Whether the trial judge erred in calculating damages for the defamatory statements; specifically that the damages are far too low, and
Whether he is entitled to pre-judgment interest.
Analysis
Did the trial judge err in calculating damages for the defamatory statements?
[6] As this is a defamation case the guiding principle in considering the trial judge’s decision on damages is that “[a]ppellate courts should not lightly interfere with damage awards, particularly the award of a jury or judge alone in a defamation case where damages are ‘at large’”; Barrick Gold Corporation v. Lopehandia et al., 71 O.R. (3d) 416, 2004 12938 at para. 20 (C.A.).
[7] In particular, at para. 25 of that decision, Blair J.A. endorsed statements made by the Newfoundland Court of Appeal about the standard of review for assessing damages in defamation cases presided over by judge alone:
In assessing damages in a libel action a judge, sitting without a jury, has a great deal of latitude and the Court of Appeal will not readily interfere with his award unless it is satisfied that he arrived at his figure either by applying a wrong principle of law or through a misapprehension of the facts or that the amount awarded was so extremely high or so low as to make it an entirely erroneous estimate of the damages.
[8] Mr. Kumar submits that the damage award is too low. The trial judge found that Mr. Kumar’s children and one or two of his cousins saw the defamatory statements and that a number of his relatives in Canada, India and other parts of the world have also seen the statements. In his written submissions before us, Mr. Kumar argued that the defamatory statements were available to the world but he agreed that there was no evidence of this before the trial judge. There is no basis to find that the trial judge misapprehended this evidence.
[9] Mr. Kumar also contends that the trial judge did not properly consider his need for ongoing psychological counselling and he argues that the trial judge awarded insufficient damages in light of the fact that he suffers from serious and lasting consequences as a result of the defamation.
[10] I disagree. At trial, the trial judge had a one page report from the psychologist that Mr. Kumar saw on a number of occasions and he was aware that Mr. Kumar had seen a psychiatrist on a few other occasions. Mr. Kumar and the witnesses that he called also testified about the impact the defamation has had on him and he testified that he had been visiting the psychologist and a psychiatrist who prescribed him medication.
[11] The trial judge acknowledged that Mr. Kumar is a proud man who feels that his standing in the community has been diminished. The trial judge was in the best position to assess this evidence and his findings in that regard must be given deference. That evidence is summarized in the reasons of the trial judge as is the evidence of several witnesses who the trial judge found corroborated the evidence of Mr. Kumar and who also testified to the psychological impact on Mr. Kumar from the defamatory statements, such as being upset, less talkative, embarrassed, depressed and less outgoing. There is no basis to conclude that the trial judge misapprehended the facts.
[12] In his oral submissions Mr. Kumar referred to the cost of seeing the psychologist but it does not appear that he provided any proof to support such a claim to the trial judge.
[13] In assessing damages the trial judge considered the damage awards given in other cases for guidance, which include the cases that the Mr. Kumar relies upon save for a 2016 decision that was decided after the decision of Faieta J. It relates to intimate videos posted on a pornography site which is not at all similar to the facts of this case.
[14] The trial judge considered that this case falls within the broad line of cases involving personal defamation rather than cases like Barrick and Hill v. Church of Scientology of Toronto, 1995 59 (SCC), [1995] 2 S.C.R. 1130, where there is a broad public nature to the disgrace visited upon the plaintiff. In the case at bar, the impugned words were published by a nephew, about his uncle, primarily to members of their family. The damages awarded are within the general range for cases of this kind, and the trial judge made no error in failing to award enormous damages like in extreme cases such as Hill and Barrick.
[15] The trial judge made a finding that the Respondent was motivated by actual malice and that was the basis of his award of aggravated damages. He also considered the fact that the defamatory statements were posted on Facebook and he relied upon case law which makes it clear that this is a significant consideration in assessing damage; see, Barrick at paras. 31 and 34 and Mina Mar Group Inc. v. Diving, 2011 ONSC 1172, [2011] O.J. No. 785 at paras. 11-13.
[16] Mr. Kumar also argues that the context in which the defamation occurred motivates a higher aggravated damages award but the trial judge was well aware of the fact that this defamation occurred in a family context. In fact the trial judge began his reasons by noting that when Lederman J. ordered that the action proceed to trial he did so because “context is crucial in determining the defamatory sense of the words.”
[17] Finally Mr. Kumar submits that the trial judge failed to properly consider the Respondent's refusal to apologize for the defamatory statements which is considered an aggravating factor in Barrick, at para. 51 and one he argues might have motivated the trial judge to come to a different conclusion on damages.
[18] In his factum however Mr. Kumar provides no reference to the transcript to demonstrate that this evidence was before the trial judge. The extract of evidence from the trial that he has produced makes no reference to this. In making his oral submissions Mr. Kumar very fairly acknowledged that this evidence was not before the trial judge. It can therefore not form the basis for any finding of an error by the trial judge.
[19] In any event, as I have already stated, the trial judge found that the Respondent was motivated by actual malice and that “the language of the Facebook statements clearly reflects the ill will felt” by the Respondent towards Mr. Kumar. In my view, even if Mr. Kumar had given evidence about a lack of apology, in light of this finding and the other reasons of the trial judge, I do not expect that it would have affected his assessment of damages.
[20] An appeal is not an opportunity to re-argue a case if a party is unhappy with the result. In my view that is essentially what Mr. Kumar is seeking to do. I find that the trial judge did not misapprehend the facts or the law, nor did he make any palpable or overriding error. I also find that the trial judge’s award of damages was not “so extremely low as to make it an entirely erroneous estimate of the damages”: Barrick at para. 25.
[21] The Appellant also argues that punitive damages are appropriate in this case and that the trial judge erred by not awarding them. He asserts that the Respondent engaged in a prolonged and spiteful campaign to maliciously harass and damage him and that the unremitting and malicious defamatory campaign was a factor necessitating a punitive damages award.
[22] The trial judge heard the evidence and he concluded that the amount he had awarded for general and aggravated damages was sufficient to achieve the goals of punishment and deterrence served by such an award. That was a decision he was entitled to make on the evidence and there is no basis to interfere.
Is Mr. Kumar entitled to pre-judgment interest?
[23] I turn then to the second issue raised by Mr. Kumar. Did the trial judge err in not awarding pre-judgment interest?
[24] The formal judgment makes no reference to a claim for pre-judgment interest which was claimed in the Statement of Claim. Mr. Kumar is clearly entitled to pre-judgment interest on the damages awarded pursuant to s. 138 (1) of the Courts of Justice Act, R.S.O. 1990, C. 43, calculated from the date the cause of action arose to the date of the judgment. This is another correction that must be made to the formal judgment. The start date for pre-judgment interest however will be from April 6, 2014, the date by which all defamatory statements had been made.
Disposition
[25] For these reasons, the appeal is allowed but only insofar as is necessary to rectify the judgment so that it reflects the award of the trial judge of $15,000 for general damages, $15,000 for aggravated damages, $2,000 in costs and pre-judgment interest from April 6, 2014 to December 16, 2015. The existing judgment provides for post-judgment interest and so no rectification for that is needed.
COSTS
[26] Mr. Kumar seeks costs of the appeal. He has disbursements for court fees but did not produce a copy of the invoice to establish what he paid for the partial transcript produced for the appeal. I am prepared to accept his figure of $500 for that transcript and in the circumstances award him $1,500 all-inclusive for costs.
SPIES J.
I agree _______________________________
CORBETT J.
I agree _______________________________
REID J.
Date: June 2, 2017