Court File and Parties
Court File No.: CV-14-502946 Date: 2016-07-13 Ontario Superior Court of Justice
Between: Senator Tobias Enverga Jr., Plaintiff And: Balita Newspaper, Balita Media Inc., Tess Cusipag, Romeo P. Marquez (a.k.a. Romy Marquez) and Carlos Padilla, Defendants
Counsel: Howard W. Winkler and Eryn J. Pond, for the Plaintiff Roy M. Respicio, for the Defendants, Balita Newspaper, Balita Media Inc. and Tess Cusipag
Heard: May 25, 2016
Before: Lederman J.
Nature of Motion
[1] The plaintiff, Senator Tobias Enverga Jr. (“Senator Enverga”) brings this motion for summary judgment against the defendants, Tess Cusipag (“Cusipag”), Balita Newspaper and Balita Media Inc. (collectively the “Media Defendants”) in respect of certain publications which the plaintiff alleges to be defamatory.
Background Facts
[2] Senator Enverga is the first and only Filipino-Canadian member of the Senate of Canada.
[3] Balita Newspaper is the largest newspaper serving the Filipino community in the Greater Toronto area including Hamilton.
[4] Cusipag is the publisher and editor of Balita Newspaper which is owned by the defendant, Balita Media Inc. Cusipag is the sole shareholder of Balita Media Inc. Cusipag also has a personal Facebook account and she is considered to be the personification of “Balita” for the purposes of Facebook.
[5] The Media Defendants published an article of and concerning Senator Enverga entitled “A biological liar? - Tobias Enverga’s Blatant Hypocrisy in Manila” on page 4 of the February 1 -15, 2014 issue of Balita Newspaper (the “Article”). Cusipag was the person who made the decision about the content of the Article and decided to place the title of the Article in a prominent position on the front page. Approximately 15,000 copies of this edition of the newspaper were circulated. The Article was also posted on Balita’s website and remains there to this day.
[6] The words complained of as being false and defamatory include:
(a) Earlier in 2001, Carlos Padilla, a former president of Kalayaan Cultural Community Centre (KCCC) …went to Peel Regional Police in Mississauga and filed a complaint alleging some chicanery against another KCCC Director;
(b) More than a decade later, in October 2013, Padilla finally got the police officer to corroborate the fact that he had indeed reported to the Fraud Department what he believed to be a fundraising scam;
(c) I recall Mr. Padilla accusing a community director of skimming fundraising money for his own purposes;
(d) Mamma Ching [Quejas], current president of KCCC, emailed him saying Tobias Enverga had promised to deliver $6,000 in 2000 to KCCC…;
(e) He could qualify as a biological liar;
(f) Enverga did not give a cent out of the $6,000 he raised for KCCC;
(g) Padilla’s allegation of fraud is the most serious, and
(h) Another controversy is the status of his Philippine Canadian Charitable Foundation (PCCF), which is questionable as he and his minions continue to assert what Canada Revenue Agency indicates, i.e., that it is not a registered charity!
[7] In addition to the aforesaid Article, Cusipag posted on her Facebook page, a republication of an email sent from Carlos Padilla (“Padilla”) to Cusipag;
[8] The plaintiff alleges that the Facebook posting contained false and defamatory words in respect of Senator Enverga and included the following:
(a) He is a pathological liar;
(b) You can without doubt easily re-write for the Filipino Reader in Manila the truth about Tobias’ Kalayaan Cultural Community Centre (KCCC) fund-raiser scam.
(c) Please mention the fraud I filed against him with Peel Regional Police in Mississauga;
(d) The fact remains he kept $6,000, and
(e) Mamma Ching with a sneer in her face, blurted out to the Ambassador Tobias did not give a cent out of the $6,000 he raised for KCCC.
Appropriateness of Summary Judgment
[9] Whether words are defamatory arise from the meaning of the words published. A trial is not necessary for this determination.
[10] The defendants rely entirely on the statements of two individuals, Padilla and Mamma Ching. They are both deceased and Cusipag took no steps to obtain their sworn evidence while they were alive, either before or after publication of the words complained of.
[11] All of the evidence is before the court. Cusipag says she has no further evidence to support her defences.
[12] The issues are straightforward; no expert evidence is required and no issues of credibility are at play.
[13] There are no issues requiring a trial in this matter. Accordingly, a summary judgment motion is the most proportionate, expeditious and least expensive means to adjudicate these issues.
Defamatory Meaning
[14] In order to succeed on a claim for defamation, a plaintiff must establish the following:
(a) That the impugned words are defamatory, in the sense that they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person;
(b) That the words in fact refer to the plaintiff;
(c) That the words were published, i.e. that they were communicated to at least one person other than the plaintiff.
[15] Once the plaintiff has established the above elements, it is presumed that the words are false and caused damage. The onus then rests on the defendant to advance and prove a defence in order to escape liability: Grant v. Torstar Corp., 2009 SCC 61 at paras. 28, 29.
[16] The defendants concede that there is no issue that the impugned statements were about the plaintiff. Furthermore, there is no issue that the words constituting the Article and Facebook posting, were released to the public in print and online.
[17] The real issue is whether the words tend to lower the plaintiff’s reputation in the eyes of a reasonable person.
The Defendants’ Position
[18] The defendants submit that the words which the plaintiff complains of must be taken in context with the plaintiff’s statement to the Philippine media in January, 2014. Of interest was Senator Enverga’s statement to the Philippine media when asked of his opinion about a major fraud investigation concerning certain members of the Philippine Senate. He admonished his native land stating that the Philippines should “apply more accountability, transparency, great reporting.” Filipino-Canadians who for the most part, are first generation immigrants to Canada, are reasonably expected to be interested in information from the Philippines. The plaintiff is the only Canadian Senator of Filipino descent. He is a politician, and by virtue of his status, his public statements carry more weight.
[19] The defendants submit that, based on the allegations made by Padilla and Mamma Ching Quejas that Senator Enverga owed money to the KCCC which had never been paid, certain members of the Filipino-Canadian community were also of this view; that this was an unresolved issue and became of importance within the Filipino-Canadian community in light of the irony of Senator Enverga’s admonishment to the Philippines’ media for accountability and transparency.
[20] The defendants submit that a reasonable, thoughtful and informed person reading the impugned contents of the Article and Facebook posting, would not likely think less of the plaintiff or cause the plaintiff to be regarded with hatred, contempt, ridicule, fear, dislike or disesteem. Rather, it would cause a reasonable thoughtful and informed person to either question the veracity of the material or start a discussion of the subject. Accordingly, the defendants submit that the words published were not defamatory.
Are the Words Complained of Defamatory?
[21] When determining the meaning of the words in a newspaper article, they should be read and construed in conjunction with the display of any title, headlines, captions and headings.
[22] There is no doubt that the words complained of, read as a whole and in their entire context, accuse Senator Enverga of criminal fraud; imply that Senator Enverga falsely represented that PCCF was a charity that could issue tax receipts for donations; and call him a biological and pathological liar.
[23] Among other things, the statements attack Senator Enverga’s honesty and integrity, cast suspicion on his character, suggest that he operates a charity with dubious status, imply that he is predisposed to be a liar by his genetic makeup, and lead people to believe he is unworthy of public trust and confidence.
[24] The defendants themselves admit that Padilla’s allegation of fraud, is indeed, very serious and that the Article indeed questions the status of the PCCF which the plaintiff operates.
[25] Since publication of the words in question, people have posted comments on Cusipag’s Facebook which call Senator Enverga a “Magnanakaw” [thief] and a “Senatong” [bad Senator who asks for a bribe] and state that he is “guilty” and “husband and wife are evil.”
[26] As for the defendants’ position that the context of why the Article was published should be of consideration, namely that there was an unresolved issue in the Filipino-Canadian community about the $6,000, this was a controversy of Cusipag’s own making. She admitted on her discovery that it was the defendants’ own Article that “stirred up the hornet’s nest.” There is no evidence to suggest that there had been any real controversy about this issue in the community until the defendants published the Article.
[27] There is no question that the words complained of as published would reasonably lower Senator Enverga’s reputation in the estimation of ordinary reasonable members of society. The defendants themselves admit in para. 18 of their Statement of Defence that the Article alleges fraud by the plaintiff. The plaintiff states in his Affidavit that people in the community believe that the published statements are true and have added their own negative responses about him to Cusipag’s Facebook page. Further, given the postings by members of the public on Cusipag’s Facebook, the comment by the trial judge as to the permanent damage to the plaintiff in Botiuk v. Toronto Free Press Publications, [1995] 3 SCR 3 at para. 72 applies equally to this case: the plaintiff may continue for the rest of time to be considered by some members of the Filipino community as the Senator who took or kept $6,000 from that community. The publications in this case are clearly defamatory.
The Defences
[28] Counsel for the defendants indicated on the motion that only two defences were being pursued: justification and fair comment.
[29] The defence of justification requires the defendants to prove the truth of the defamatory meanings and innuendo. The driving force behind the allegation of the non-payment of $6,000 to the KCCC was Padilla. The Article and Facebook publication are nothing more than restatements of what Padilla said.
[30] Although Senator Enverga has denied the allegations made by Padilla and Mamma Ching, the defendants’ position is that they believed in the information furnished by Padilla and Mamma Ching. They rely entirely on that information. Those two individuals provided information about the plaintiff’s non-payment of funds to the KCCC in 2000 or 2001. Both of those individuals passed away after the commencement of this action but the defendants never sought a formal statement or affidavit from either of them.
[31] Cusipag admits that she did not ask for proof that the plaintiff committed fraud, nor did she ask for notes, documents, evidence or source documents or conduct her own independent fact checking. She relied solely on the information given by Padilla and Mamma Ching about an event which occurred about 15 years ago.
[32] Counsel for the defendants recognized that the “repetition rule” is applicable. The following passage in Raymond E. Brown, Brown on Defamation (Second Edition, Carswell, 1999, updated 2015), at para. 10.3 aptly describes the rule as follows:
The courts have come to adopt a rule of liability known as the “repetition rule”. In essence it provides that for the purpose of the law of defamation, a defamatory statement made by way of hearsay is to be treated the same as a direct statement. A defamatory statement repeated by a defendant is to be treated the same as if he or she had originated it. Therefore, a defendant who has reported a defamatory allegation about the plaintiff cannot succeed in a plea of justification merely by proving that the allegation was made; he or she must prove the truth of the underlying allegation. It is a rule of considerable antiquity.
[33] In the end, the defendants have no reliable evidence to prove the truth of the $6,000 fraud allegation or the PCCF donation/tax credit allegation. In fact, Cusipag admitted on discovery that it is not true that Senator Enverga committed a fraud in relation to fund raising activities and that the PCCF allegations are false.
[34] Therefore, the defence of justification fails.
[35] With respect to the defence of fair comment, the defendants are in a similar position as they are with respect to the defence of justification. Fair comment defence depends on provable facts. Although everyone is entitled to comment fairly on matters of public interest, such comments are protected by a qualified privilege if they are found to be comments and not statements of fact, and are made honestly, and in good faith, about facts which are true on a matter of public interest. (Brown on Defamation, supra at c. 15.1(1)).
[36] The defendants have failed to set out any facts upon which the comments “biological liar” and “pathological liar” (even if these words constitute “comment”) were made, and as indicated above, there was no truth established with respect to the $6,000 KCCC fraud allegation and the PCCF allegation.
[37] For this reason alone, the defence of fair comment fails even without the necessity of a demonstration that the defendants acted unfairly and without good faith in making the defamatory statements.
Damages
[38] The plaintiff seeks substantial damages as follows:
(a) general damages in the amount of $200,000 for each of the three separate distinct libels for a total of $600,000;
(b) aggravated damages in the total amount of $200,000; and
(c) punitive damages in the amount of $100,000.
[39] General damages for harm to one’s reputation are presumed from the very publication of the false statements and an assessment of damages takes into account the following factors: the nature and circumstances of the publication of the libel, the nature and position of the victim of the libel, the possible effects of the libel upon the life of the plaintiff and the actions and motivations of the defendants (Hill v. Church of Scientology of Toronto, [1995] 2 SCR 1130 at para 182).
[40] Factors in considering aggravated damages include whether the defendants’ motives and conduct aggravate the injury done to the plaintiff and whether there is malice or spite. Further, pleading the defence of justification without clear and sufficient evidence of the truth of the imputation has consequences when assessing damages. An unsuccessful plea of justification may be taken into account in aggravating the plaintiff’s damages: Roger D. McConchie and David A. Potts, Canadian Libel and Slander Actions (Toronto: Irwin Law Inc. 2004) at p. 501). This is particularly true where there is no expectation that the plea can be supported by proof and no evidence is offered at all: Brown on Defamation, supra, at 10.10.
[41] Punitive damages may be awarded in order to punish the defendant and deter others from acting in a similar manner and where the combined award of general and aggravated damages is insufficient in this regard: Hill, supra at p. 1208.
[42] The case most similar to the instant one is Botiuk v. Toronto Free Press Publications, [1995] 3 S.C.R. 3. The libel in the Botiuk case occurred within a distinct ethnic community. In that case, the court considered the consequences which flowed from the publication of documents which either directly alleged or clearly implied that the plaintiff, a lawyer of Ukrainian descent, had misappropriated money that belonged to the Ukrainian-Canadian community. As a result of those publications, the plaintiff who had previously enjoyed an excellent reputation, was branded as a dishonourable person who could not be trusted. Publishing the documents had a devastating and lasting effect on both his private life and his professional career and continued to cause him stress, anxiety, hurt and humiliation.
[43] In the Botiuk case, the trial judge awarded $140,000 for general damages and aggravated damages combined. The Supreme Court of Canada upheld this award. With respect to the harm to one’s reputation (and in that case it was a lawyer’s) Major J. had the following to say at para. 92:
It was observed in Hill that this is particularly true of lawyers. A reputation for integrity and trustworthiness is the cornerstone of their professional life. Injury done to reputation can only with the greatest difficulty be repaired. As Cardozo J. put it in People ex rel. Karlin v. Culkin, 162 N.E. 487 (N.Y. 1928) at p. 492, “[r]eputation in such a calling is a plant of tender growth and its blossom, once lost, is not easily restored”. It should be recognized that these observations will be equally applicable to other professions and callings. It is simply that this case is concerned with a lawyer. I would add that for a lawyer whose practice stems in large part from a tightly knit, ethnic community, a charge of dishonesty would undoubtedly cause a crushing injury (emphasis added).
[44] These observations hold true as well for the reputation of a Senator coming from a tightly knit ethnic community.
[45] Although there are three libels in this case, they all are of the same nature and within the same time frame and refer to the same circumstances. They may be treated as one libel for the purposes of damages. Given the similarities to the Botiuk case, and the award in that case, I believe an award of $150,000 for both general and aggravated damages together is appropriate in the instant case.
[46] Further, an award for punitive damages is necessary in this case. The defendants, and in particular Cusipag, has done virtually everything she could to destroy and discredit Senator Enverga in an unrelenting manner, both in print and online. They continue to advance the defence of justification even on this motion when they knew it was hopeless. They engaged in absolutely no investigation whatsoever as to the truth of what they were publishing. They were recklessly indifferent to the truth of the Article. They gave the plaintiff no opportunity to respond to the allegations in advance of publication and to present his side of the story. They have published innuendo with criminal implications which Cusipag herself admits in her affidavit as being “serious allegations of fraud”. The defendants consistently and constantly repeated and published the Article and the Article remains on the website of Balita today and is available on the internet. At no time has there been any retraction or apology given.
[47] Cusipag vows to continue to make defamatory statements against the plaintiff and has shown no interest in stopping her efforts or refraining from misconduct. In 2010, after Senator Enverga was elected as a Catholic school board trustee, he arrived late to a press event held by Cusipag. She published a warning to Senator Enverga. “First off is to respect the press who can wield its power to make or break you.” In the Article and on her Facebook page, she is fulfilling the threat that she made against the plaintiff in 2010 that she would destroy him.
[48] Cusipag was motivated by malice. She obviously holds a deep seated resentment towards Senator Enverga. She used his comments to the Philippine press as a springboard to vent her unfounded allegations in the published Article and her Facebook to intentionally besmirch Senator Enverga’s reputation in the Filipino-Canadian community.
[49] In Leenen v. Canadian Broadcasting Corp., [2001] O.J. No. 2229 (C.A.), an award of punitive damages of $200,000 was made for outrageous and malicious conduct. The trial judge in that case pointed out that “it is important to emphasize that punitive damages should only be awarded in those circumstances where the combined award of general and aggravated damages would be insufficient to achieve the goal of punishment and deterrence” (at para. 29.) Such is the case here as well.
[50] In Leenen, it was a serious libel against a respected cardiologist broadcast to 1.5 million CBC viewers. Although the audience to which the article and Facebook was addressed is not of that magnitude, their impact in the close knit Filipino-Canadian community on Senator Enverga of being vilified in that community’s largest newspaper is enormous. Punitive damages are necessary in the interests of punishment and deterrence. In the instant case, punitive damages of $100,000 are in order.
Should a Permanent Injunction be Granted?
[51] Although rare, permanent injunctions have been ordered after findings of defamation where there is a likelihood that the defendant will continue to publish defamatory statements despite the finding that the defendant is liable to the plaintiff for defamation, absent an injunction restraining the defendant from doing so: Astley v. Verdun, 2011 ONSC 3651 at para. 21; St. Lewis v. Rancourt, 2015 ONCA 513 at paras. 13-16.
[52] Here, there is an ongoing concern that the defendants will continue to publish defamatory statements about Senator Enverga. They have engaged in a persistent campaign to injure Senator Enverga and ruin his reputation and have done so with malice. They have refused to apologize and they have given no indication that they are prepared to stop their irresponsible defamatory attacks. In these circumstances, a permanent injunction will go enjoining the defendants directly or indirectly, from publishing and/or broadcasting, or encouraging or assisting others to publish or broadcast any statements, in any manner whatsoever which in their plain or ordinary meaning or by innuendo suggest:
(1) In relation to fundraising activities for KCCC in 2001, Senator Enverga committed criminal fraud;
(2) That by virtue of Senator Enverga’s involvement in fundraising activities for KCCC in 2001 and by virtue of his statements in relation to the charitable status of PCCF, he is a pathological or biological liar.
Conclusion
[53] The plaintiff is entitled to damages from the Media Defendants and Cusipag jointly and severally in the amount of:
(a) $150,000 for general and aggravated damages; and
(b) $100,000 for punitive damages; and
(c) pre-judgment interest on the aforesaid damages in accordance with the Courts of Justice Act.
[54] In addition, there will be a permanent injunction against the defendants as stated above.
[55] Costs are to be addressed in writing; the plaintiff’s submissions within 30 days; the defendants’ submissions within 15 days thereafter and the plaintiff’s reply submissions, if any, within 7 days thereafter.
Lederman J. Released: July 13, 2016