Court File and Parties
COURT FILE NO.: CV-18-00608890 DATE: 20190725 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
JACK OLIVEIRA Plaintiff – and – MARIO OLIVEIRA Defendant
COUNSEL: A.C. Lewis and J-C Killey, for the Plaintiff A. Persico, for the Defendant
HEARD: July 19, 2019
REASONS FOR DECISION
(MOTION FOR SUMMARY JUDGMENT PURSUANT TO RULE 20.01)
LEIPER J.
INTRODUCTION
1The plaintiff, Jack Oliveira brought a motion for summary judgment against the defendant, Mario Oliveira in respect of certain communications which the plaintiff alleges to be defamatory of him. These communications were made by telephone to one person, by email delivery to a reporter at the Toronto Star, and copied by email to the constituency office of Premier Doug Ford.
2The plaintiff is the chief executive of the Labourer’s International Union of North America, Local 183, which has its head office in Toronto. The defendant is a former member of Local 183 and an employee of the All Industries Labourers’ International Union for North America Central and Easter Canada Organizing Fund II (CECOF). The plaintiff and defendant share the same surname but are not related.
3The defendant was discharged from his employment with CECOF on February 3, 2017. On November 1, 2017, he started a claim against CECOF, Local 183 and others for wrongful dismissal.
4In his lawsuit, and in later public comments, the defendant alleged harassment, corruption and fraud at the management level of Local 183. That litigation is ongoing as of the date of this motion.
5On May 4, 2018, Local 183 served a notice to the defendant under the Trespass to Property Act.
6On May 5, 2018 the defendant sent an email to the plaintiff in which he alleged that he had seen a legal document which included a copy of the plaintiff’s “mug shot” and referred to the fact he had been charged as a pedophile (the “May 5th email”).
7The alleged defamatory expressions occurred after the May 5 email to the plaintiff. In August to September of 2018, the defendant made several telephone calls to another CECOF employee, made statements to that employee about the plaintiff being a pedophile and told the employee that he had proof. On November 5, 2018, the defendant sent emails about the fraud and corruption he alleged at Local 183 to a Toronto Star reporter and to the constituency office of Doug Ford. He attached a copy of his May 5, 2018 email to the plaintiff.
8The defendant asserts that the context of the statements said to be defamatory must be considered in the greater context of the wrongful dismissal action. The defendant says that the plaintiff has mischaracterized his words which are not defamatory and are derived from another source which he acknowledged needed to be verified. If the expressions are found to be defamatory, the defendant submits that the limited extent of the publication and the lack of damages suffered by the plaintiff support no more than an award of nominal damages.
9For the reasons set out below, I have determined that this is an appropriate case for summary judgment. I find that the expressions were defamatory of the plaintiff and that there are no defences available to the claim. I have awarded general damages in the amount of $20,000 and aggravated damages in the amount of $10,000 against the defendant. I have also made an order for a permanent injunction.
BACKGROUND
10The plaintiff immigrated to Canada from Portugal at 12 years of age and began working as a labourer in 1984 with Local 183. He worked his way to a management position within the union. He is the business manager of Local 183, the largest construction local union in North America, with more than 60,000 members. His position is an elected one. He was elected in 2011 and re-elected in 2015 and 2019.
11The plaintiff is married, with three children. On November 3, 2017, he received a medal from the government of Portugal for his contributions to the community in Canada and Portugal. He received the medal at the Palace of Belem in Lisbon, presented personally by the President of Portugal.
12The expressions which the plaintiff alleges are defamatory related to a series of telephone calls between another member of Local 183 and the defendant, and emails delivered to Toronto Star reporter and to the constituency office of Doug Ford, the premier of Ontario. The emails included an attached copy of the May 5th email from the defendant to the plaintiff.
13The May 5th email read as follows [original text]:
The rules of the game is that there are no rules. Since you banned from the local and it will take time through the courts to reverse your decision I have decided to reciprocate. And it will take time for you to undue what u start. But it won’t stop me in the end.
Salina stated you had a little dick. I think I will start my new leaflets with that caption. LITTE DICK JACK.
I should also let you know that someone has contacted me and showed me a Portuguese legal document with your mug shot and charge of pedophilia. Apparently, you are a convicted pedophile in Portugal. I have to verify this document before I start handing out copies of it to the members and community.
Courts can never undue the damage done ……..not being allowed to go to my local. Bahahaha
Ps. See ya at the parades and family day buddy.
14The defendant does not deny sending this email to the plaintiff. The plaintiff has sworn that these allegations are false. The defendant filed no material to substantiate the allegation of pedophilia or a conviction for a charge of pedophilia. During the defendant’s cross-examination on his affidavit he admitted that he had not read the “legal document” mentioned in the email, nor had he taken a “good look “at it. He agreed that he did not know what it said, and he could not identify the plaintiff in the photograph on the document. He said he was shown the document three years prior to sending the email.
15In August of 2018, the defendant contacted a fellow employee and organizer from CECOF, John O. The defendant asked if John would join his team to run against the current management at Local 183. He also advised John that the plaintiff, “is a pedophile and I have proof.” Between August and October of 2018, John and the defendant had several other telephone calls. In his affidavit, John swore that “Mario repeated his allegation about Jack Oliveira being a pedophile at least three more times in separate telephone calls.” At the last of those calls, on or about October 16, 2018, the defendant told John that the plaintiff committed pedophilic acts in Portugal. John said that he told the defendant that this was a serious allegation and he had better have proof. The defendant told him that he would have to get the proof because it happened in Portugal.
16The defendant has not denied making the statements to John, either in his affidavit or on cross-examination. He has said that John wanted to publicize the allegation of pedophilia but that he warned John not to repeat or reveal the allegation to anyone because he had not been able to verify the information.
17On November 2, 2018, counsel for the plaintiff sent a demand letter to the defendant which sought a retraction and apology for the content of the May 5 email and the comments made to John. The defendant did not respond directly to the demand letter, nor did he retract his comments or apologize.
18On November 5, 2018, the defendant sent an email to a Toronto Star reporter to which the May 5th email was attached, as well as the plaintiff’s demand letter and a draft apology letter (the “November 5th email”). The email was titled “COERCION AND THREATS.” The body of the email to read as follows: [original text]
Hi Robert. Your story on corruption and fraud at local 183 at the hands of Jack Oliveira `just got a lot more interesting. You might want to wait for them to file the documents in court. Then I give it to you and my response.
This current information I have not discussed with you before now.
These degenerates just threatened me with a lawsuit 2 weeks before the legal proceedings “discovery” are to take place as a result of the lawsuit I brought against them after I was fired for blowing the whistle on illegal Activities and fraud under the leadership of Jack Oliveira and not least of all after they threatened me with a gun and covered it up including not contacting the police. They are now trying to coerce and intimidate me into signing a document I never wrote.
I trust you received the investigation report I sent you as a result of my Whistle blowing
Regardless I have attached it including the intimidating and threatening correspondence Jack Olivera’s attorneys sent today to my litigation lawyer. These lawyers are paid for by the union membership. It is nice that the union pays for his personal legal expenses.
It turns out that they have composed a letter that they demand I sign as if I had written it when I never did. If I don’t sign this “Dear Jack” letter that I never had a hand in composing they will sue me. Can you believe the audacity of these thugs. They think they can coerce and bully me into signing a document purportedly that I wrote when I never did write it.
I won’t sign a letter that I never wrote. These people are crazy.
I have no choice now but to follow through and file a criminal complaint against them. I had hired a lawyer about two weeks ago for just that purpose. I have been struggling with information of criminal activity committed by certain individuals controlling local 183. I need to get this off my chest.
please see attachments. There is an email where I asked for financial statements of the Union and they fired me 2 days later for doing so while I was on disability suffering from PTSD.
19The defendant copied the email to the constituency office of Premier Doug Ford. He also copied the email to the plaintiff and his lawyer. The allegations were not printed or reported elsewhere. There is no evidence of further dissemination of the comments. The plaintiff asked the defendant for further information as to whether any further dissemination had taken place and received no response. The plaintiff seeks an adverse inference drawn from the non-response, that the defendant repeated the communications elsewhere.
20On November 18, 2018, the plaintiff issued a statement of claim for defamation. On February 1, 2019, an interlocutory order was agreed to by the parties that prohibited the defendant from repeating the expressions that are at issue here concerning the plaintiff.
AVAILABILITY OF SUMMARY JUDGMENT
21Rule 20 is the source of jurisdiction for a judge to determine a claim using a summary form of procedure, without a matter going to trial. The relevant portions of the rule provide:
(2) The court shall grant summary judgment if,
(a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence; or
(b) the parties agree to have all or part of the claim determined by a summary judgment and the court is satisfied that it is appropriate to grant summary judgment.
(2.1) In determining under clause (2)(a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:
- Weighing the evidence.
- Evaluating the credibility of a deponent.
- Drawing any reasonable inference from the evidence.
(2.2) A judge may, for the purposes of exercising any of the powers set out in subrule (2.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation.
22The process must allow a judge to make the necessary findings of fact and to apply the law to the facts. The goal is a proportionate and expeditious means to achieve a just result. See Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 at para 49.
23The plaintiff argues that this is an appropriate case for summary judgment because the issues are clear, the facts are not materially disputed and there are no issues of credibility. The statements made by the defendant are admitted, and there is no evidence to support a defence of justification. The issues are 1) whether the statements are defamatory and, 2) if so, in the absence of any other available defences, what damages and other relief are appropriate.
24The defendant argues that this case is not appropriate for summary judgment and asks that the issues be determined at a trial. He alleges that evidence which was not put before the court on this motion is relevant to the defamation proceedings, including an ongoing wrongful dismissal action, and an internal investigation document related to the workplace harassment alleged by the defendant in this action.
25It is unclear to me that findings of wrongdoing against either the plaintiff or Local 183 could afford a defence to the allegations of defamation made against the defendant. The expressions are undisputed and are available to be measured against the law of defamation. The defendant has not asserted any defences in argument as to defamatory statements made by way of the telephone calls to John. In relation to the statements made over email, he argues that the statements are merely reports of a suspicion that must be verified and as a result are not defamatory. However, this can be determined on a summary judgment motion as the statements are known.
26The defendant also claims that the context and backdrop to the wrongful dismissal will be relevant to any damages on defamation. He argues that the ill treatment he suffered from his employer and from the plaintiff are relevant circumstances to the assessment of the allegedly defamatory statements in this case.
27The general principles for awards of damages in defamation cases are summarized in Magno v. Balita Media et al., 2018 ONSC 3230, at para 68:
In Enverga the court provided an excellent summary of the principles behind general, aggravated and punitive damages as follows at paras. 39-42:
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 S.C.R. 1130 at para 182).
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. 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.
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.
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 365 at para 21; St. Lewis v. Rancourt, 2015 ONCA 513 at paras 13-16.
28The defendant’s wrongful dismissal claim pleads assault, vicarious liability and infliction of mental distress which the defendant alleges he suffered prior to the termination of his employment. Although the impugned expression in this case took place while these proceedings are ongoing, the expressions themselves are about a wholly unrelated matter: the alleged criminality in Portugal of the plaintiff, related to conduct with children. Further, the relevant period related to the employment claim is between 2015-2017. The statements by the defendant were made in 2018. The proceedings are not inextricably linked such that one cannot be determined without the other. Any necessary context is available by way of the material filed on the motion. The facts that respond to the principles considered on an award of damages are available here and now.
29I conclude that this is an appropriate matter for summary judgment. The facts are clear and not materially disputed. Sufficient context is available by way of the pleadings, affidavits and cross-examination excerpts. A determination by way of summary judgment will be more expeditious than a trial and avoid prolonging the matters.
ISSUE #1: WERE THE EXPRESSIONS DEFAMATORY OF THE PLAINTIFF?
30Defamation is made out where a plaintiff: 1) establishes that a communication was published to at least one other person, 2) the communication referred to the plaintiff and 3) the communication was defamatory in that it would tend to lower the plaintiff’s reputation in the eyes of a reasonable person: Grant v. Torstar, 2009 SCC 61, [2009] 3 S.C.R. 640 at para 28.
31False allegations about criminal sexual misconduct with a minor are “serious and egregious” allegations: Zall v. Zall, 2016 BCSC 1730, at para 75. The defendant acknowledged that such allegations are serious during his cross examination.
32The evidence of the telephone calls between the defendant and John is undisputed: he told John that “Jack is a pedophile and I have proof.” He repeated this allegation several times in telephone calls made to John between August and October of 2018. The content of these telephone calls establishes a communication about the plaintiff to a third party that would tend to lower the reputation of the plaintiff in the eyes of a reasonable person.
33The email attachment sent to the Toronto Star reporter and copied to the Premier’s constituency office included this paragraph:
I should also let you know that someone has contacted me and showed me a portuguese legal document with your mug shot and charg of pedophilia. Apparently you are a convicted pedophile in Portugal. I have to verify this document before I start handing out copies of it to the members and community. [original text]
34A plain reading of this paragraph would lead a reader to believe that it means to say that the defendant has seen a document that includes a “mug shot” of the plaintiff associated with a charge of “pedophilia.” “Apparently you are a convicted pedophile” is an assertion that the plaintiff has been found guilty. The last sentence refers to the need to verify the document before disseminating it, rather than the need to verify the allegations reported therein.
35The defendant has argued that the true purpose of his email to the reporter was to expose other wrongdoing at the union. This is part of the content of his November 5th email, which I have considered. However, this does not function as a defence or justification to the attaching of the May 5th email containing the assertion about the plaintiff, including that “Apparently you are a convicted pedophile in Portugal.” I find that this paragraph leaves the impression that the plaintiff is a convicted pedophile and that there is a legal document that needs to be verified to that effect. Whether or not it was sent alongside other allegations of wrongdoing and given that there is no evidence of justification for this portion of the communication, I find that the allegations of pedophilia in the attached May 5th email would tend to lower the reputation of the plaintiff in the eyes of a reasonable person. There have been no defences raised of privilege, qualified privilege or fair comment.
36I find that the delivery of the November 5th email to the Toronto Star reporter, and copied to the constituency office of the Premier, was defamatory of the plaintiff.
ISSUE #2: WHAT DAMAGES ARE APPROPRIATE IN THESE CIRCUMSTANCES?
37Once defamation is established, damages are presumed: Paramount v. Kevin J. Johnson, 2019 ONSC 2910 at para 67.
Principles of General Damages
38In awarding general damages in this case, and applying the Enverga factors referred to above, I have considered the senior position of the plaintiff at Local 183, as an elected official. The defamatory comments are of a serious nature given societal attitudes towards sexual misconduct with children. There was no retraction or apology made by the defendant, although he was given that opportunity. Instead, he furthered the publication of the allegations through the November 5th email. These are aggravating factors.
39On the mitigating side, I have considered the extent of the publication. This was not a broad posting on the internet, or a press conference on the courthouse steps nor was it the subject of publication by mainstream media. The telephone conversations were with another union member. These conversations included some discussion about refraining from further disseminating the allegations without proof. The email to the Toronto Star reporter did not become part of any news reports by that reporter, but this could not be known by the plaintiff at the time. The plaintiff might reasonably have worried that there could be broader dissemination of the allegation.
40The plaintiff swore an affidavit in support of a permanent injunction in which he acknowledged that the stigma that attaches to pedophilia is of an “especially odious kind.” Although he says that he would like to believe nobody would believe the statements, he expects that some people might harbor suspicions about him that could not be repaired by retraction, apology or correction. Although the plaintiff had not sought or needed any counselling or medical attention arising from the statements, he pointed out that he does not know the extent of the damage. He said, “Right now, I am trying to sort of try and, you know, hopefully this goes away and nothing comes out of it.”
41Defendant’s counsel submitted that the context and the issues in the wrongful dismissal claim are mitigating factors. The content of the November 5th email from the defendant to the Toronto Star suggests a strong sense of grievance and makes other allegations against the union that are not the subject of this defamation claim. However, even if one assumed that those allegations were true, and that the wrongful dismissal claim has merit, it does not follow that this would justify or mitigate the damages for making an unrelated allegation of pedophilia against a person, no matter what they might have done in the employment context.
Principles of Aggravated Damages
42The approach to aggravated damages outlined by the Supreme Court of Canada in Hill v. Scientology provides for aggravated damages where the defendant’s conduct has been “particularly high-handed or oppressive, thereby increasing the plaintiff’s humiliation and anxiety arising from the libelous statement”: at para. 188. Aggravated damages compensate for harm to the plaintiff’s feelings. To order such damages, there must be a finding that the defendant was motivated by actual malice, increasing the injury either by spreading further afield the damage to the reputation or by increasing the mental distress or humiliation of the plaintiff: Hill v. Scientology at para 190.
43Each case is unique and depends on its own set of facts. Here although the plaintiff described the potential for future impact on his reputation, he did not provide any description of a personal impact upon him from the defamatory expression. He maintained his position at the union. There was no evidence of further dissemination of the allegations.
44In contrast, the evidence in Hill v. Scientology from the plaintiff was that on reading the libelous statements, he felt “sick,” “shocked” and “horrified.” The defamatory comments were made by a senior member of the bar on the steps of a Toronto courthouse.
45A finding of malice may also ground a claim for aggravated damages. Malice is generally understood to be spite, ill will or any indirect motive other than a sense of duty. Malice may also be established by showing that the defendant was not telling the truth or was reckless in that regard: Magno v. Balita Media Inc. et al. supra. at paras. 60-61.
46The plaintiff argues that there is evidence to support a finding that the defendant was motivated by malice, including:
- the timing of the statements in relation to the wrongful dismissal action and trespass notice;
- the attachment of an investigation report to the November 5 email which was subject to the deemed undertaking rule;
- the defendant’s stated motivation to “take down” the plaintiff and other members of Local 183’s executive
- the words of disdain applied to the plaintiff, revealing that the defendant is spiteful and motivated to harm the plaintiff;
- the defendant’s cooperation with an article published about the Local 183 in May of 2019 in which he repeated allegations related to the wrongful dismissal claim (not the defamatory expression).
47The defendant made the comments in the context of his desire to replace the leadership of the Local 183. He admitted in his cross-examination that he did not see the document that was supposedly a “mug shot” nor did he identify the plaintiff in the document. He has supplied no evidence in support of a justification defence. The other insults in the May 5th (“little dick Jack”) email indicate anger and a desire to humiliate the plaintiff, in addition to the making of the defamatory comments I find that the defendant was motivated by malice toward the plaintiff in making the defamatory comments.
Principles of Punitive Damages
48The general principles of punitive damages are that they are a means of punishing a defendant rather than compensating the plaintiff for harm caused by the expression. Punitive damages are an expression of outrage and are awarded in circumstances where the combined award of general and aggravated damages is insufficient to punish and deter to the defendant and others from acting in this manner in the future: Hill v. Scientology, supra at para. 199.
49Other considerations for the application of punitive damages include ensuring that the large, wealthy and powerful do not persist in libeling vulnerable victims. This head of damages ensures that general/aggravated damages do not constitute a “licence” to continue a character assassination: Hill v. Scientology, supra at para. 199.
50There must be a rational purpose for an award of punitive damages. In other cases, such purposes have been connected to circumstances and factors such as:
- A repetition of the libelous comments the day after the trial verdict: Hill v. Scientology;
- Lack of justification for an article alleging involvement in the shooting death of an unarmed child in Afghanistan and the motivation by mala fides: Learmouth v. Statham;
- Publication of the defamatory comments on-line after the defendant was served with the claim, after pleadings closed; the defendant used words which described lawsuits as an “investment” revealing a need for deterrence; the defendants demonstrated disrespect for court orders, were found in contempt and to have violated an injunction: Magno v. Balita Media Inc. et al., supra;
- Findings of malice, the seriousness of statements and the standing of the plaintiff in the legal profession: McNairn v. Murphy and Pene, 2017 ONSC 1678 at para 71;
- Actions which displayed ongoing disrespect for the court process; maligning the court and its judges; alleging a conspiracy by the court; making false and contradictory statements to the court and flouting court orders: Paramount v. Kevin J. Johnston, 2019 ONSC 2910 at paras 80-83.
51The plaintiff submits that punitive damages are appropriate in this case because of certain steps taken by the defendant, including contesting the interlocutory injunction requiring cross-examinations and an attendance prior to consenting to the injunction. The plaintiff also points to the defendant’s failure to file any evidence at the summary judgment motion, his failure to respond to a summons for examination requiring attendances before civil practice court, and his claim not to have seen two injunctions that were issued on an interim and interlocutory basis.
52I conclude that the defendant’s conduct during the litigation has at times increased the cost and steps required of the plaintiff. Additional unnecessary steps can and have been addressed via costs orders. Unlike Hill, Paramount and Magno, the impugned allegations were not repeated or disseminated further once the claim was commenced. There was no pattern of disrespect for the court’s processes. In addition, this case did not involve the element of a well-resourced defendant who might not be deterred by awards of general or aggravated damages. The limited nature of the dissemination, the ultimate consent to an interlocutory injunction and the restraint from further publication during the proceedings lead me to conclude that that punitive damages are not required in this case.
Quantum of General and Aggravated Damages
53Damages are presumed from the publication of a defamatory statement. The quantum will depend upon all the circumstances. In this case, the statements contained a serious allegation that was sent or made to three recipients. There was no apology or retraction, and November 5th email was sent after the defendant was put on notice that legal proceedings would be brought if he failed to retract the false statements. I have found that the defendant is motivated by malice against the plaintiff. The sense of grievance underlying these statements do not justify the defendant making them.
54There is no indication, nor have I drawn the inference, that these allegations have been widely disseminated or known or acted upon by others. There is no evidence of the kind of impact described by plaintiffs in cases involving imputations of criminal conduct or sexual misconduct with minors, including for example:
- Feelings of trauma, being demeaned and a “basket case” for allegations of sexual misconduct with a minor published on GoFund Me and potentially available to millions, shareable on other social media platforms, and involving loss of income, police interviews of the plaintiff and a lie detector test: See Zall v. Zall, 2016 BCSC 1730 in which $75,000 general damages and $50,000 aggravated damages were awarded;
- Shunning of the plaintiff by family members; wide dissemination of allegations of sexual misconduct with minor relatives in family and close-knit community: See Vanderkooy v. Vanderkooy et al., 2013 ONSC 4796: Damages of $125,000 general awarded;
- Stress, need for medication, anxiety experienced by the plaintiff, a professional accused of theft throughout a condominium community by email: see McNairn v. Murphy, 2017 ONSC 1678: Damages of $70,000 total against Defendant #1; Damages of $90,000 against Defendant #2;
- Panic disorder, impact on relationships with family, in the workplace and others arising from a radio broadcast connecting him to the purchase of sex from young persons/men trying to buy sex from children: in circumstances where he spoke to an undercover adult police officer with a view to soliciting paid sex: see Grassi v. WIC Radio Ltd. et al., 2000 BCSC 185: Damages of $35,000 as against the radio station and damages of $45,000 against the province.
55In contrast, the plaintiff has been able to carry out his union responsibilities. There was no evidence that he needed time off or required medical intervention. There is no evidence of any interference with his relationships or community. The plaintiff was re-elected general manager of Local 183 in 2019. This is some evidence of ongoing confidence in his leadership by the members of the union.
56On balance, I conclude that the fair quantum of damages is general damages of $20,000.00 and aggravated damages of $10,000.00. I recognize that this is a lower award than in other cases of false allegations of pedophilia, however the determining factor in the size of the award is the narrow dissemination, the fact that there was no internet sharing or publication on at large websites or any broadcast within a community. The adherence to the interim and interlocutory injunctions means that an additional injunction should be considered in addition to the damages award to address any danger of future dissemination of these defamatory allegations.
Permanent Injunction
57Permanent injunctions are made where there is a likelihood that the defendant will continue to publish defamatory statements or may not be able to compensate the plaintiff by paying the award of damages owed: Paramount v. Kevin J. Johnson, 2019 ONSC 2910 at para 84.
58The defendant has complied with interim and interlocutory injunctions. This speaks either to the defendant’s ability to refrain from further publication of the statements or to the efficacy of court orders and his willingness to abide by them. The defamatory comments and other invective used by the defendant, speaks to the anger with which he has pursued his goals. There has been no apology or retraction. There has been no material filed to justify the comments. On balance, I conclude there is an ongoing risk that the defendant could repeat the defamatory statements in the absence of a court order prohibiting him for doing so.
59I will grant the request for a permanent injunction in the terms described, including the carve outs granted by Justice Pattillo.
Costs
60If the parties are unable to agree as to costs, brief written submissions may be made by the plaintiff to be received within 10 days of the release of these reasons and from the defendant within 15 days of the release of these reasons.
Leiper J.