COURT FILE NO.: CV-09-00375111
DATE: 20130718
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
BYONG-KUON KIM
Plaintiff
– and –
DONGPO NEWS, KWANG HO SONG and JOHN DOE
Defendants
Paul Boshyk, for the Plaintiff
James Herbert, for the Defendants
HEARD: June 10, 2013
t. mcewen j.
reasons for decision
background
[1] The plaintiff, Byong-Juon Kim (“Kim”), commenced this action for libel against the defendants, Dongpo News (“Dongpo”), Kwang Ho Song (“Song”) and John Doe.
[2] Kim previously obtained a default judgment against Dongpo. On October 26, 2011, Whitaker J. ordered that Dongpo pay Kim $50,000 for general damages, $25,000 for aggravated damages and that it remove from its website the articles described in the Statement of Claim. He also ordered a permanent injunction restraining Dongpo from publishing further false, misleading or defamatory statements about the plaintiff.
[3] Therefore, this action only proceeded against Song.
[4] Kim also obtained a default judgment against a publication called the “Korean Forum” in a separate action. He obtained that default judgment from Whitaker J. on October 26, 2011 and received the exact same judgment that he received against Dongpo ($50,000 for general damages, $25,000 for aggravated damages and the ancillary relief).
factual overview
[5] Kim was the president of the Advisory Council on Democratic and Peaceful Unification in Korea, which is known in the Korean community as “PyongTong Canada”. Dae-Wha Chung (“Chung”) was the executive secretary of PyongTong Canada.
[6] On February 6, 2005, there was a dispute between Kim and Chung with respect to expenses that Chung had incurred. Chung was seeking reimbursement in the amount of $1,805.
[7] At that time, Kim also attempted to retrieve a cheque book and some pictures from Chung, which led to an altercation. Chung assaulted Kim with a knife, bit him and caused bodily harm.
[8] Although Chung was convicted of assault, the trial judge found that Kim provoked the altercation by trying to forcefully take back the documents from Chung.
[9] Subsequently, a number of media outlets broadcast the incident. Dongpo, a Korean-language online and printed newspaper, published nine articles about the incident. Other Korean newspapers, including The Korean Times and The Korean Central Daily, which are larger newspapers than Dongpo with more significant distribution in Ontario, also reported on the incident.
[10] Only one of the articles published by Dongpo was written by Song. In writing this article, Song largely relied upon articles written in The Korean Times and in the Korean Central Daily. Song did not confirm any of the facts with Kim or Chung. The article was included in the Dongpo news on February 21, 2005. It read as follows:
After-effects of the State of Affairs Stemming from the Violent Assaults by Toronto PyongTong
Caused by the problematic expenditure of the event, the recent incidents of violent assaults between the executive members themselves of the Advisory Council on Democratic and Peaceful Unification of Korea – Canada East Chapter in Toronto [also known as PyongTong] is creating tremendous public outcry and criticism in the Korean community, giving rise to tens of thousands-fold after-effects.
This incident of violent assault having taken place between the President and the Executive Secretary has developed into reciprocal lawsuits against each other, expanding into exposing internal conflicts, as well as pinpointing the uselessness of PyongTong’s existence itself. Things have gone so bad that the Manager in charge of Overseas Chapters, Ms. Eun-Sook SHIN, came over from Korea in an attempt to try and resolve the problem by reviewing what had transpired.
It has been revealed that the problem started at the time of preparation of the “Korean Peninsula Peace Forum” held late November of last year which was being funded with $200,000 from the Korean government’s budget. It was sparked by a conflict of opinions about the money between the President Byong-Kuon Kim (68 years old) and the Executive Secretary Dae-Wha Chung (59 years old). Moreover, the organization experienced difficult times caused by the conflicts regarding money issues between the President and younger preparation committee members, resulting in two members (including one Vice-president) being dismissed during the preparation period.
The reason this incident of violent assaults took place between both parties (the President and the Executive Secretary) a few days ago was due to the problematic issues of expenditures about ‘how to manage the remaining funds after the forum.’ While the President maintained that a part of the remaining balance of $67,000 out of the total amount of $200,000 “should be rightfully paid to those who have worked hard during the time,” the Executive Secretary strongly raised an objection, stating that “why should any kind of money be paid to those volunteers who are the same members, even though some of the money has been left unused,” which created an intense conflict of opposing opinions.
They also stated that they “could not understand why, of all places, such an event has taken place here in Toronto where the members of Korean community are not that large, not to mention that they are not that passionate towards the issues of unification,” criticizing that “PyongTong has been a useless organization which has long been ignored by the Koreans living in overseas and cannot understand the reason why each and every Korean regime had continued to support its existence, wasting enormous budge amount.” It is apparent that this state of affairs has caused the surge of the public opinion’s theory of PyongTong’s uselessness as among the members of the Korean community.
[11] Kim resigned from his position as president of PyongTong Canada after details were published in other newspapers, but before the article was written by Song and published by Dongpo.
[12] Kim testified that he was not aware of Song’s article until February of 2009, when he saw the Dongpo articles about the incident on the internet, and in particular, the article written by Song. Thereafter, he sent a libel notice on March 9, 2009 to Song and issued the Statement of Claim on March 24, 2009. On July 13, 2009, Song published a correction in the print edition of Dongpo, which read as follows:
correction
There was a article published in the Pong po News, dated February 9, 2005, stating “This lent assault incident between the president, Kim Byong kuon of Democratic and Peaceful Unification of Korea-Canada East Chapter, and the Executive Secretary, Chung, Daehwa has developed into legal actions against each other”. This statement is not correct. Chung, Daehwa is the only one charged legally for the incident. I am responsible for this false statement. Hereby I reverse my statement.
Song, Kwang ho
Former overseas writer of Dongpo News
[13] Song also took steps to have Dongpo remove the article from the internet. Song’s evidence was that this was done in 2011.
[14] Notwithstanding his evidence, in April of 2013, Song’s article was posted on the website of the New Zealand Korean Sunday Times. Song asked the New Zealand Korean Sunday Times to remove the article and his evidence was that this was done.
[15] Song has never apologized to Kim for the article.
the position of song
[16] Song raises two defences to this action:
the action is barred by the applicable limitation periods in the Libel and Slander Act, R.S.O. 1990, c. L.12 or the Limitations Act, 2002, S.O. 2002, c. 24, Schedule B; and
the article in question was not defamatory.
[17] I will examine each of these defences in turn.
1. The Limitation Period Defences
[18] Song submits that the action is statute-barred by the applicable limitation periods.
[19] This raises two issues:
(a) do the notice and limitation provisions of the LSA apply to the article written by Song; and
(b) do the notice and limitation provisions of the LSA (if they apply) or the Limitations Act (if the relevant LSA provisions do not apply) bar Kim’s right of recovery?
(a) Do the Notice and Limitation Provisions of the LSA Apply?
[20] The relevant sections of the LSA provide as follows:
Notice of action
5(1) No action for libel in a newspaper or in a broadcast lies unless the plaintiff has, within six weeks after the alleged libel has come to the plaintiff's knowledge, given to the defendant notice in writing, specifying the matter complained of, which shall be served in the same manner as a statement of claim or by delivering it to a grown-up person at the chief office of the defendant.
Limitation of action
6 An action for a libel in a newspaper or in a broadcast shall be commenced within three months after the libel has come to the knowledge of the person defamed, but, where such an action is brought within that period, the action may include a claim for any other libel against the plaintiff by the defendant in the same newspaper or the same broadcasting station within a period of one year before the commencement of the action.
Application of ss. 5 (1), 6
7 Subsection 5(1) and section 6 apply only to newspapers printed and published in Ontario and to broadcasts from a station in Ontario.
[21] In this case, it is not disputed that Song’s article initially only appeared in Dongpo. Dongpo is published in South Korea. The article appeared both in print and on Dongpo’s website.
[22] Kim testified that in February of 2009, a person from The Korean Times advised him that Dongpo had published articles about him regarding the incident with Chung. He went online to do a search and noticed the Dongpo articles, including Song’s article. This occurred in early February 2009. Thereafter, he retained counsel and a libel notice was sent to Song on March 9, 2009 and the Statement of Claim was subsequently issued on March 24, 2009.
[23] Song submits that ss. 5(1) and 6 of the LSA should apply to internet articles that are published in other countries but accessible in Ontario. He concedes that there is no jurisprudence to date that supports this notion and as a result, the law is unsettled as to whether a plaintiff needs to serve notice for a defamatory statement on a website that is not connected to a newspaper that is located in Ontario.
[24] Because of the Court of Appeal’s findings in Bahlieda v. Santa (2003), 2003 2883 (ON CA), 68 O.R. (3d) 115 (C.A.), Song did not try to argue that the article constitutes a broadcast. Instead, he submits that the article is in a newspaper that is printed and published in Ontario. This argument is based on Weiss v. Sawyer (2002), 2002 45064 (ON CA), 61 O.R. (3d) 526 (C.A.), at paras. 23-25, which provides that the definition of “newspaper” is broad enough to encompass a newspaper that is published on the internet. However, Song rightfully concedes that in Weiss, the article in question was published in Ontario, and thus, the court did not have to grapple with whether an internet article that is published in another country but available in Ontario can be considered to be a part of a newspaper that is “printed and published in Ontario”. He also concedes that he is asking me to extend the law past its current, unsettled state.
[25] I am not prepared to extend the law based on the limited evidence presented in this case. Although the Court of Appeal in Bahlieda discussed the importance of expert evidence in deciding whether internet publications are “broadcast” within the meaning of the LSA, I find that expert evidence is also germane for determining whether an internet article that is published internationally can be considered to be a part of a newspaper that is “printed and published in Ontario” within the meaning of the LSA. There was no such expert evidence before me, nor was there any meaningful evidence introduced on this issue during the brief trial. Therefore, based on the evidentiary record, I cannot conclude that the Song article was in a newspaper that was printed and published in Ontario. Accordingly, the notice and limitation provisions of the LSA do not apply.
(b) Did Kim Commence the Action in Time?
[26] In the event that I am wrong, I will consider whether Kim commenced his action in compliance with the notice and limitation provisions of the LSA. I will also consider whether Kim commenced his action in compliance with the provisions of the Limitations Act.
[27] Sections 4 and 5(1) of the Limitations Act provide the following:
Basic limitation period
- Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.
Discovery
- (1) A claim is discovered on the earlier of,
(a) the day on which the person with the claim first knew,
(i) that the injury, loss or damage had occurred,
(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,
(iii) that the act or omission was that of the person against whom the claim is made, and
(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and
(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).
(2) A person with a claim shall be presumed to have known of the matters referred to in clause (1) (a) on the day the act or omission on which the claim is based took place, unless the contrary is proved.
[28] The discoverability principle is codified in s. 5 of the Limitations Act. Although not expressly set out in the LSA, it is well-settled law that the discoverability principle also applies to the limitation periods therein. This is confirmed by the Ontario Court of Appeal in Shtaif v. Toronto Life Publishing Co., 2013 ONCA 405, [2013] O.J. No. 2778, at para. 42, which provided the following: “the discoverability principle applies to limitation periods under the [LSA]. … The three-month period in s. 6 begins to run when the person defamed knew or could have known about the libel by the exercise of reasonable diligence.”
[29] In Bhaduria v. Persaud (1998), 1998 14846 (ON SC), 40 O.R. (3d) 140 (Gen. Div.), Ferrier J. held that since the alleged libellous statements were widely published and part of a greater controversy involving the plaintiff, the plaintiff would have been aware of the alleged libels had he not left his home area in order to avoid the controversy that had engulfed him. Although in some circumstances, laying low for a period of time and a short delay in obtaining the necessary information to commence an action is understandable in such a situation, the plaintiff waited more than two years to commence the investigation that led to his discovery of the alleged libel. Since the statements were well publicized and the investigation could have been commenced much earlier, Ferrier J. found that the plaintiff should reasonably have known of the material facts supporting the cause of action and he failed to exercise reasonable diligence. As a result, the plaintiff could not escape the limitation period.
[30] In the present case, Kim explained at trial that he was not aware of the Song article since he resides in Ontario and the article was published by Dongpo in South Korea. It was not until around 2009 that he became aware of articles being published about him and he began to search online. He further testified that he was only becoming accustomed to using the internet around 2009. Since his proficiency in this regard did not exist prior to 2009, he could not have located the article earlier. Lastly, Kim’s counsel submits that once Kim learned of the article in February 2009, he moved expeditiously in accordance with the provisions of the LSA.
[31] The analysis in this case is a difficult one. In some respects, it mirrors the problem the plaintiff in Bhaduria had in overcoming the objective component of the limitation period. However, there are important distinguishing features between the two cases. Unlike Bhaduria, in which the plaintiff absented himself from his home area to avoid the controversy, and therefore, did not know of the alleged libels, in this case, Kim, who lives in Toronto, was libelled in another country. I accept his evidence that given his background and age, he did not have the ability and skills to use the internet and reasonably know of the libel until February of 2009, when he was advised by a person from The Korean Times that there were articles about him in South Korea.
[32] On the facts of this case, if the LSA notice and limitation provisions apply, I find that Kim complied with s. 5(1) in providing a notice of libel within six weeks of discovering the libel. I also find that Kim commenced the action within the three months set out in s. 6, based on the principle of discoverability. Consequently, even if the notice and limitation provisions in the LSA apply, the claim is not statute-barred.
[33] If the notice and limitation provisions in the LSA do not apply, based on my findings above, the claim was certainly within the two year limitation period set out by the Limitations Act.
2. the issue of defamation
Were the Words Defamatory?
[34] Words are defamatory if they tend to cause the plaintiff to be regarded by reasonable persons with hatred, contempt, fear or ridicule. Words are also defamatory if they impute improper and disreputable conduct, even though an ordinary person might not regard that conduct with hatred, contempt, fear or ridicule: see Peter A. Downard, Libel, 2nd ed. (Markham, Ont.: LexisNexis Canada Inc., 2010), at p. 31.
[35] In my view, the comments concerning the altercation, resulting lawsuits and the reason for the altercation, were defamatory.
[36] A reasonable person having fairly read the assertions in the article would understand the following:
both Kim and Chung engaged in violent assaults on each other;
this resulted in both commencing lawsuits against each other; and
the mutual assaults and resulting lawsuits arose out of a dispute over $67,000. Kim wanted to pay this amount to workers during the PyongTong Summit and Chung objected to this.
[37] In reality, however, the evidence discloses the following:
Chung assaulted Kim;
only Kim has commenced a lawsuit against Chung; and
the dispute arose over a disbursement that Chung sought to be reimbursed for in the amount of $1,805.
[38] In the transcript containing the evidence from the criminal hearing, which was introduced into evidence on consent, the trial judge found that Kim provoked Chung by attempting to forcefully remove the documents from him, but there is no mention whatsoever, nor can any inference be drawn, that Kim assaulted Chung.
[39] Taken as a whole, in context, the article suggests that Kim was of the view that $67,000 should be paid to certain persons whom he favoured and as a result of a disagreement, he assaulted Chung and was sued by Chung for the assault. None of these things, of course, occurred.
[40] In my view, Song’s article clearly refers to Kim and imputes improper and disreputable conduct to him where it did not exist. It was defamatory.
Were the words Printed Malicious?
[41] For the purpose of obtaining an award of punitive damages, Kim alleges that the words were malicious. I agree.
[42] Malice was described by the Supreme Court of Canada in Botiuk v. Toronto Free Press Publications Limited, 1995 60 (SCC), [1995] 3 S.C.R. 3, at para. 79, as follows:
Malice is commonly understood as ill will towards someone, but it also relates to any indirect motive which conflicts with the sense of duty created by the occasion. Malice may be established by showing that the defendant either knew that he was not telling the truth, or was reckless in that regard.
[43] In this case, there is no evidence to suggest that Song knew he was not telling the truth. However, on the other hand, I find that Song’s conduct was reckless because he largely relied upon an article published by The Korean Times and the Korean Central Daily without doing any of his own investigations. In particular, he did not attempt to interview Kim. He made some efforts to contact Chung but never did so. He wrote the article without any confirmation. It was a sensational article and inaccurately accused Kim of criminal conduct. In cross-examination, Song conceded that he could have asked for Kim’s side of the story since he had his contact information, and that his behaviour in publishing the article was reckless.
damages
General Damages
[44] Macdonald J. in Foulidis v. Ford, 2012 ONSC 7189, 114 O.R. (3d) 58, at paras. 51-53, provided the following summary on general damages:
If Mr. Foulidis had been successful in proving that he was libelled by the words in issue, he would not need to prove actual loss. General damages are presumed from the publication of a libel: see Murphy v. Alexander, 2004 15493 (ON CA), [2004] O.J. No. 620, 236 D.L.R. (4th) 302 (C.A.), at p. 311 D.L.R.
General damages are compensatory damages which, in a libel action, are awarded primarily to compensate for the harm caused to the plaintiff’s reputation by the defamatory publication. Intangible or subjective elements are properly considered, as are the plaintiff’s wounded feelings: see Walker v. CFTO Ltd., supra, at p. 111 O.R..
Since general damages in a libel case do not require proof in the assumed circumstances, the courts have developed a number of criteria to assist in assessing them. Peter A. Downard provides a useful list in Libel, op. cit., at para. 14.01.
[45] Kim testified about the impact the libel had upon him. In both his affidavit evidence and his viva voce evidence, he expressed the fact that he suffered from humiliation, he had problems sleeping and eating, it affected his relationship with his family, he resigned from his position at PyongTong, it greatly affected his status in the South Korean community in Toronto and he was “shunned” by community members. Kim’s wife also testified to this effect.
[46] Kim’s counsel submits that the libel was exacerbated by the fact that Song is a well-regarded South Korean writer who, on two occasions, won the South Korean equivalent of the Pulitzer Prize. Song does not dispute these facts.
[47] However, the evidence is also clear that Kim resigned from his position at PyongTong a few days before the Song article was even published and that the incident attracted a lot of press within the South Korean community in Toronto. Several articles about the incident were published by other newspapers, including The Korean Times, which ran at least five articles in 2005. Furthermore, The Korean Times and other Korean-language newspapers have a greater circulation than the Dongpo, which is only produced two times per month in South Korea to a limited readership.
[48] I must also take into account the fact that Song published the correction which, in part, retracted the article. He also attempted to take down the internet postings on the Dongpo and New Zealand Korean Sunday Times websites. That being said, however, given the nature of the internet, there is obviously no guarantee that the articles will ever be completely taken down. This is established by the fact that the article was picked up by the New Zealand Korean Sunday Times and reproduced in 2013.
[49] Finally, the fact remains that Kim was unaware of the Song article for approximately four years, which raises the question as to how profound an impact it could have had upon him in the South Korean community in Toronto. Kim’s counsel submits that Kim did not find out about the article because he was “shunned” by community members, as is typical in the South Korean community. There was little evidence, however, to support this contention and even if this was the case, one would have expected Kim and his wife to have made inquiries as to why they were being shunned.
[50] Overall, however, I accept Kim’s evidence that he suffered humiliation and that his reputation suffered as a result of the Song article.
[51] Looking at all of the various factors, I conclude that on a 100% basis, the plaintiff’s general damages are properly assessed at $15,000 in this action. I stress that this is on a 100% basis since the facts of this case compel me to take into account s. 10 of the LSA, which provides as follows:
Evidence in mitigation of damages
10 In an action for a libel in a newspaper or in a broadcast, the defendant may prove in mitigation of damages that the plaintiff has already brought action for, or has recovered damages, or has received or agreed to receive compensation in respect of a libel or libels to the same purport or effect as that for which such action is brought.
[52] In the proper case, it is appropriate to reduce the general damages in recognition that a portion of the damages was jointly caused by other articles which have been the subject of litigation, or in the case of The Korean Times, will be the subject of future litigation: see Young v. Toronto Star Newspapers Ltd. (2003), 2003 64296 (ON SC), 66 O.R. (3d) 170 (S.C.), at paras. 230-240, aff’d 2005 35775 (ON CA), 77 O.R. (3d) 680 (C.A.). However, it is reasonable to err in favour of the plaintiff, since he is entitled to full recovery of the damages caused by Song: see Young, at para. 241.
[53] As noted, Kim has obtained default judgments against Dongpo and the Korean Forum, and he has obtained an assessment of $50,000 for general damages in each action. There was no evidence as to whether he has recovered any actual monies in this regard. The action against The Korean Times remains outstanding. As stated in Young, it is difficult to employ the provisions of s. 10 since it does not provide assistance on how to avoid the duplication of damages. Although Song’s article was only one of many, given his status as a journalist, it is reasonable to conclude that damage was inflicted upon Kim over and above that in the other publications.
[54] Considering all of the circumstances of this case, and erring in favour of the plaintiff, I would apply a 20% reduction to the general damages.
[55] Therefore, I would award Kim the amount of $12,000.
Punitive Damages
[56] Based on my findings above, I concluded that Song did act with malice. Although there has not been an apology, there was a partial correction and an attempt to remove the subject matter from the internet. In my view, Song’s misconduct was so reckless that it was malicious, oppressive and highhanded, and it offends the court’s sense of decency. Song ought to be punished for falsely writing that Kim was involved in criminal and disrespectable activity, and was sued as a result. It is important to keep in mind, however, that this was a case in which Song essentially copied articles from other newspapers, and that he did not engage in any sort of prolonged or proactive conduct that he knew to be false.
[57] In the circumstances, I would assess punitive damages in the amount of $5,000.
Injunctive Relief
[58] Given my findings above, I am prepared to grant Kim a permanent injunction restraining Song from directly or indirectly making or publishing any further false, misleading or defamatory statements about Kim.
[59] I am not prepared to grant the relief sought requiring Song to apologize to Kim. To be clear, Kim did not request any sort of published retraction, but rather, a simple apology from Song to Kim. No case law was provided supporting the notion that such relief is obtainable from this court and I do not believe I have the jurisdiction to grant this relief: see Hamalengwa v. Duncan, [2005] O.J. No. 851 (S.C.), at para. 29, aff’d on other grounds (2005), 2005 33575 (ON CA), 202 O.A.C. 233 (C.A.).
disposition
[60] For the reasons above, I order as follows.
[61] Song is to pay Kim general damages in the amount of $12,000.
[62] Song is to pay Kim punitive damages in the amount of $5,000.
[63] A permanent injunction shall be granted restraining Song from directly or indirectly making or publishing any further false, misleading or defamatory statements about Kim.
[64] Kim shall be awarded prejudgment interest pursuant to the provisions of the Courts of Justice Act, R.S.O. 1990, c. C.43.
[65] If the parties cannot agree on the issues of prejudgment interest and costs, written submissions may be made to me within 30 days of the release of this decision. The plaintiff’s submissions are to be made within 15 days and the defendants are to reply within 15 days thereafter.
T. McEwen J.
Released: July 18, 2013
COURT FILE NO.: CV-09-00375111
DATE: 20130718
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
BYONG-KUON KIM
Plaintiff
– and –
DONGPO NEWS, KWANG HO SONG and JOHN DOE
Defendants
REASONS FOR DECISION
T. McEwen J.
Released: July 18, 2013