Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20241120 DOCKET: COA-22-CV-0226

Pepall, Nordheimer and Zarnett JJ.A.

BETWEEN

Ajith Sabaratnam Plaintiff (Respondent/ Appellant by way of cross-appeal)

and

Kanapathipillai Yohanathan a.k.a. Tamil Mooka, and MK Tamil, 2137534 Ontario Corp. a.k.a. Paraii Media Group and Paraii.com Defendants (Appellants/ Respondents by way of cross-appeal)

Counsel: Tamil Mooka, acting in person James R. Lane, for the respondent/appellant by way of cross-appeal

Heard: November 14, 2024

On appeal from the judgment of Justice Marie-Andrée Vermette of the Superior Court of Justice, dated August 18, 2022, with reasons reported at 2022 ONSC 4779.

Reasons for Decision

[1] Mr. Mooka and his company appeal from the summary judgment granted by the motion judge that awarded the plaintiff damages for defamation in the amount of $75,000 and punitive damages in the amount of $25,000. The plaintiff cross-appeals from the refusal by the motion judge to grant him a permanent injunction.

[2] The appellants had posted a number of disparaging articles about the respondent on a now defunct website owned and operated by a company owned by the appellant. Among other things, the articles included allegations that the respondent had engaged in criminal, fraudulent and other improper conduct, including the misappropriation of funds. The respondent delivered a Notice of Libel to the appellants that requested that the articles be retracted and that an apology be made. The appellants refused to retract the articles and did not apologize.

[3] The motion judge delivered detailed reasons for her decision to grant summary judgment. She noted that both the appellants and the respondent (all of whom were represented before her) had agreed that this case was one that was appropriate for summary judgment. In addition, the motion judge gave her own reasons for agreeing that the case was appropriate for summary judgment. The motion judge also noted that, based on counsel’s submissions, the central issue on the motion before her was the issue of damages. Nevertheless, the motion judge reviewed each of the defences that had been pleaded and explained why none of those defences raised a genuine issue requiring a trial.

[4] The appellants raise essentially three issues in their factum. First, they submit that this was not an appropriate case for summary judgment. That submission is difficult to advance given the concession that the appellants’ counsel made before the motion judge. We also agree with the reasons that the motion judge gave for concluding, even absent that concession, that summary judgment was appropriate.

[5] Second, the appellants repeat that they had defences to the defamation claim including truth and fair comment. The problem for the appellants with respect to the submission that truth is a defence is that the appellants did not place any evidence before the motion judge that would establish the truth of any of the allegations made.

[6] The appellants also argue that the motion judge relied on versions of the articles that were manipulated to add words to them and were inaccurately translated into English. The Tamil and English language versions of the articles were attached to the statement of claim. The statement of defence admitted them. There was no allegation of words having been added to the Tamil versions. The statement of defence did plead that the English translations were inaccurate, but there was no evidence of this before the motion judge, who was entitled to accept the evidence before her that the translations were accurate.

[7] Recognizing these problems, the appellants sought to file fresh evidence before this court that the appellants say either establishes the truth of the allegations or shows that the allegations, properly translated, were not defamatory. We do not admit the fresh evidence. It does not satisfy the requirements for the admission of fresh evidence as established by cases such as R. v. Palmer, [1980] 1 S.C.R. 759. More specifically, this evidence could, and should, have been placed before the motion judge. That was not done, according to the appellants, because of errors committed by their counsel. This became the central argument of the appellants on this appeal.

[8] The appellants refused to waive privilege regarding their former counsel’s file or with respect to other communications that they had with their counsel. This precluded the respondent from being able to properly respond to the assertion. Putting that issue aside, though, even accepting that there was ineffective assistance, that contention does not go to the issue whether summary judgement was properly granted. Rather, the principles described by this court in OZ Merchandising Inc. v. Canadian Professional Soccer League Inc., 2021 ONCA 520, at paras. 44, are applicable in this case. In Oz, this court wrote that allegations of ineffective assistance of counsel at trial in civil matters are properly raised by way of a negligence action by the client against the lawyer. Although there may be some cases in which the nature of the claim gives rise to a public interest that transcends the private interests of the litigants and allows for ineffective assistance of counsel as a ground of appeal, this is clearly not such a case.

[9] Lastly, to the degree that any of the fresh evidence was properly admissible, it is far from clear that it would have affected the result. As respondent’s counsel points out, even the material provided by the appellants and asserted to be properly translated, contains defamatory statements regarding the respondent.

[10] Third, the appellants take issue with the damages that were assessed by the motion judge. The assessment of damages is very much a matter for the discretion of the judge of first instance. The appellants have not demonstrated any error in principle in the motion judge’s assessment of damages in this case. It is not for this court to perform an independent assessment and substitute it for the assessment made by the motion judge.

[11] Finally, we address the respondent’s cross-appeal. The respondent also brings a motion to file fresh evidence. He submits that the motion judge erred in denying him a permanent injunction and that the subsequent conduct of the appellants, as recorded in the fresh evidence motion, provides additional support for that relief.

[12] We would not admit the fresh evidence. It also fails the Palmer test, more particularly, it could not reasonably be expected to have affected the result. The fresh evidence falls short of establishing a proper basis for the granting of a permanent injunction. It consists of one further defamatory posting made on a different website (said to be connected to the appellants) in April 2022 and an August 9, 2022 post that did not identify the respondent by name. They were deleted within a day of the respondent complaining about them. These postings do not add materially to the evidence that was before the motion judge. The motion judge cited the proper authority for considering the grant of a permanent injunction and she explained why, in the circumstances of this case, that relief was not warranted. The respondent has not demonstrated any error in the motion judge’s analysis and the fresh evidence does not operate to change that result, especially since more than two and a half years have passed without any further problem.

[13] The appeal and cross-appeal are dismissed. The respondent is entitled to his costs of the appeal which we fix in the amount of $5,000, inclusive of disbursements and HST. There will not be any award of costs on the cross-appeal.

“S.E. Pepall J.A.” “I.V.B. Nordheimer J.A.” “B. Zarnett J.A.”