Manson v. John Doe No. 1 et al.

[Indexed as: Manson v. John Doe No. 1]

Ontario Reports

Ontario Superior Court of Justice,

Goldstein J.

February 6, 2013

114 O.R. (3d) 592 | 2013 ONSC 628

Case Summary

Civil procedure — Costs — Substantial indemnity — Unknown defendant posting highly defamatory statements about plaintiff on two separate websites — Defendant failing to comply with court order requiring him to identify himself — Defendant refusing to remove posts and persisting in driving up plaintiff's legal costs — Plaintiff awarded costs on substantial indemnity basis.

Civil procedure — Dismissal for delay — Setting aside — Plaintiff commencing defamation action against "John Doe" and taking unsuccessful steps to ascertain defendant's identity — Registrar dismissing action without notice to plaintiff — Registrar's order set aside — Plaintiff and his counsel not having been dilatory — No doubt existing that plaintiff's counsel would have taken steps to prevent dismissal had registrar served plaintiff with notice.

Torts — Defamation — Damages — Unknown defendant posting highly defamatory statements about plaintiff on two separate websites and also posting statements purportedly made by plaintiff — Defendant failing to comply with court order requiring him to identify himself and making no attempt to file defence or otherwise justify defamatory posts — Defendant sending defamatory posts to senior executives at plaintiff's workplace — Defendant continuing to make defamatory posts after plaintiff commenced defamation action — Plaintiff awarded general damages in amount of $100,000 — Aggravated damages of $50,000 and punitive damages of $50,000 awarded.

The defendant, whose identity was unknown, posted statements about the plaintiff on two separate websites. The second set of posts were made after the plaintiff brought a motion to compel Google to disclose subscriber information. The posts were offensive and reprehensible. The posts also included comments purportedly composed by the plaintiff, including comments taking credit for being the "resident rapist" at the plaintiff's former law firm. The plaintiff brought a defamation action against the defendant and obtained an order requiring the defendant to identify himself. The defendant failed to do so and was noted in default on August 17, 2011. On February 6, 2012, the registrar dismissed the action without notice to the plaintiff. The plaintiff brought a motion to set aside the registrar's order and for judgment.

Held, the motion should be granted.

It was appropriate to set aside the registrar's order. The plaintiff and his counsel had not been dilatory in any way, and there was no doubt that if the registrar had served the plaintiff and his counsel with notice, they would have taken steps to prevent the dismissal.

There was no possibility that any ordinary, right-thinking member of the public would not find that the posts exposed the plaintiff to contempt, ridicule, fear or dislike. The defendant had made no attempt to file a defence or otherwise justify the defamatory posts and had been noted in default. The plaintiff was clearly entitled to judgment. [page593]

General damages in the amount of $100,000 were awarded. Aggravated damages in the amount of $50,000 were also awarded. The circumstances of this case were particularly egregious. The defendant had sought to victimize the plaintiff and even went so far as to send the posts to senior executives at the plaintiff's workplace. Punitive damages in the amount of $50,000 were awarded. The defendant had acted maliciously, and the court had to send a strong message of denunciation and deterrence.

The defendant had deliberately and maliciously persisted in driving up the plaintiff's legal costs. The plaintiff was entitled to costs on a substantial indemnity basis.

Cases referred to

Hill v. Church of Scientology (1995), 1995 59 (SCC), 24 O.R. (3d) 865, [1995] 2 S.C.R. 1130, [1995] S.C.J. No. 64, 126 D.L.R. (4th) 129, 184 N.R. 1, J.E. 95-1495, 84 O.A.C. 1, 25 C.C.L.T. (2d) 89, 30 C.R.R. (2d) 189, 56 A.C.W.S. (3d) 495, consd

Other cases referred to

Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291, [2004] O.J. No. 2634, 188 O.A.C. 201, 48 C.P.C. (5th) 56, 2004 14579, 132 A.C.W.S. (3d) 15 (C.A.); Busseri v. John Doe, [2012] O.J. No. 4465, 2012 ONSC 5385 (S.C.J.); Finlay v. Van Paassen (2010), 101 O.R. (3d) 390, [2010] O.J. No. 1097, 2010 ONCA 204, 266 O.A.C. 239, 318 D.L.R. (4th) 686, 188 A.C.W.S. (3d) 675; Manson v. John Doe No. 1, [2011] O.J. No. 3572, 2011 ONSC 4663 (S.C.J.); Whiten v. Pilot Insurance Co., [2002] 1 S.C.R. 595, [2002] S.C.J. No. 19, 2002 SCC 18, 209 D.L.R. (4th) 257, 283 N.R. 1, J.E. 2002-405, 156 O.A.C. 201, 20 B.L.R. (3d) 165; 35 C.C.L.I. (3d) 1, [2002] I.L.R. I-4048, 111 A.C.W.S. (3d) 935

Statutes referred to

Courts of Justice Act, R.S.O. 1990, c. C.43, s. 131(1)

Rules and regulations referred to

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 14.08(1), 19.02(1)(a), 19.06, 37, 37.14, 48.15(1)

MOTION for an order setting aside the registrar's order dismissing an action and for judgment.

David Chernos and Alexander C.W. Smith, for plaintiff.

No one appearing for defendants.

[1] GOLDSTEIN J.: — The plaintiff is a lawyer and the director of legal affairs at Quebecor Media Inc. ("Quebecor"). The defendant is unknown.^1 He has waged an anonymous electronic campaign of libel against the plaintiff. Despite opportunities to justify his comments and to identify himself, he has failed to do so. [page594]

[2] The plaintiff brought a motion for the following relief:

(a) judgment for defamation with general, punitive and aggravated damages;

(b) an order setting aside the order of the registrar dismissing the action; and

(c) costs on a substantial indemnity basis.

[3] On December 3, 2012, I heard the motion and granted judgment as sought by the plaintiff. I wrote the following endorsement:

In my view, the Plaintiff has clearly established that the statements are libellous and he shall have judgment in the amount of $100,000.00 as general damages. The Defendant's continued repetition of the libellous statements in the face of multiple court orders, as well as his cowardly failure to identify himself despite Justice Pepall's order, also make this a case for punitive and aggravated damages. Thus, a further $50,000.00 in punitive damages as well as $50,000.00 in aggravated damages are awarded, for an overall total of $200,000.00 in damages.

Costs on a substantial indemnity basis in the amount of $49,965.89 are awarded. The judgment will carry interest at the statutory rate. I will provide more extensive reasons at a later date.

Note: the administrative dismissal of the action by the Registrar is set aside.

[4] The following are my reasons.

Background

[5] In January 2010, the plaintiff became aware that defamatory statements about him were posted on a website hosted by Blogger. Blogger is a Google web service. The original posts consisted of statements made about him and purportedly made by him (I refer to these posts as the "Blogger posts"). The Blogger posts suggested that the plaintiff was a lying crook, a Nazi, a pedophile and rapist, a thief, and a morally repugnant imbecile. The plaintiff is obviously none of those things. The Blogger posts included comments purportedly posted by the plaintiff. These comments included taking credit for being the "resident rapist" at his former law firm. This post is especially repugnant.

[6] I have not repeated here the most colourful of the Blogger posts. Even though, with over 200,000 words, the English language is not entirely adequate to describe the nature of many of the posts, some adjectives that do spring to mind include shocking, disgusting, outrageous, racist, provocative. In a (legal) word: defamatory. [page595]

[7] In May 2010, the defendant sent e-mails to senior executives at Quebecor and a Quebecor subsidiary, Sun Media Corporation, from the Gmail account lawbuzz.litigation@gmail.com (the "lawbuzz account"). Gmail is the e-mail service of Google. The e-mail contained a hyperlink to the Blogger posts.

[8] On June 30, 2010, the plaintiff's counsel commenced this action against John Doe No. 1. On July 9, 2010, the defendant posted further defamatory posts, alleging, for example, that the plaintiff was "a morally repugnant imbecile of the most sanctimonious variety" and that the plaintiff had brought the legal profession into disrepute.

[9] The plaintiff brought a motion to compel Google to disclose subscriber information in relation to the lawbuzz account and the Blogger posts. Google informed John Doe through an e-mail to the lawbuzz account that it had been served with motion materials. The defendant responded from the same account that he was retaining counsel. Justice Code ordered Google to provide the subscriber information on July 29, 2010. Google did so. Regrettably, the plaintiff and his counsel have been unable to determine the identity of the defendant, although they have expended time and resources in an effort to do so.

[10] In July and August 2010, Google removed the Blogger posts. At the same time, the defendant commenced posting defamatory statements about the plaintiff on another website, lawbuzzlitigation.wordpress.com (I refer to these posts as the "Wordpress posts").

[11] In the meantime, the fruitless efforts of the plaintiff to find the defendant continued. Rule 14.08(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the "Rules") provides that a statement of claim must be served within six months after it is issued. On February 4, 2011, Master Abrams ordered that the time for service be extended by a further 180 days.

[12] In July 2011, the plaintiff's counsel commenced attempts to validate service. The plaintiff's counsel sent e-mails to the defendant at the lawbuzz account. The e-mails indicated that a motion would be brought. The e-mails also included copies of the motion materials. The defendant responded that the lawbuzz account could not receive attachments and claimed that he did not receive the motion materials. The defendant responded:

We are not formally served with notice of any impending proceeding with respect to this matter. As far as we are concerned, we have no duty or obligation to meaningful respond to or appear at any proceeding.

[13] In August 2011, Pepall J., as she then was, granted the plaintiff's motion. Her Honour validated service, and ordered that the Wordpress posts be removed. Her Honour also ordered [page596] that the defendant identify himself: Manson v. John Doe No. 1, [2011] O.J. No. 3572, 2011 ONSC 4663 (S.C.J.). The Wordpress posts were duly removed, but the defendant has failed to identify himself. On August 17, 2011, the defendant was noted in default.

[14] On February 16, 2012, the registrar dismissed this action. At the end of February 2012, the plaintiff's counsel received a copy of the registrar's order. There had been no previous notice from the registrar. At approximately the same time, the plaintiff's lead counsel underwent major surgery. He was unable to act on the dismissal until his return to work in the summer of 2012.

Analysis

[15] There are six issues to be determined on this motion:

(1) Should the administrative dismissal be set aside?

(2) Should judgment for defamation be granted?

(3) Should general damages be awarded?

(4) Should aggravated damages be awarded?

(5) Should punitive damages be awarded?

(6) Should costs be awarded on a substantial indemnity basis?

1. Should the administrative dismissal be set aside?

[16] Pursuant to rule 48.15(1) of the Rules, the registrar shall make an order dismissing an action as abandoned if certain preconditions are met. One of those conditions is that 180 days has passed since the issuance of the originating process. Another condition is that the parties be given 45 days' notice that the action will be dismissed as abandoned. The registrar did not give notice to the plaintiff's counsel.

[17] Rule 37.14 of the Rules provides as follows:

37.14(1) A party or other person who,

(a) is affected by an order obtained on motion without notice;

(b) fails to appear on a motion through accident, mistake or insufficient notice; or

(c) is affected by an order of a registrar,

may move to set aside or vary the order, by a notice of motion that is served forthwith after the order comes to the person's attention and names the first available hearing date that is at least three days after service of the notice of motion.

(2) On a motion under subrule (1), the court may set aside or vary the order on such terms as are just. [page597]

[18] The registrar's failure to serve the notice was an irregularity that can be remedied pursuant to Rule 37: Finlay v. Van Paassen (2010), 101 O.R. (3d) 390, [2010] O.J. No. 1097, 2010 ONCA 204. A decision to set aside the registrar's dismissal requires a contextual approach that balances all the relevant factors to determine what is just in this particular case.

[19] In my view, the dismissal should be set aside. There is no evidence that the plaintiff or Mr. Chernos, his counsel, was dilatory in any way. Indeed, the evidence demonstrates the opposite: Mr. Chernos took active, aggressive and appropriate steps to vindicate his client's rights in this litigation. I have no doubt that if the registrar had complied with the Rules and served the plaintiff or his counsel, Mr. Chernos would have taken steps to prevent the dismissal. Indeed, this is what he did when he returned from his convalescence. The delay from March to July of 2012 to bring a motion to set aside the administrative dismissal has been satisfactorily explained.

2. Should judgment for defamation be granted?

[20] There are few things more cowardly and insidious than an anonymous blogger who posts spiteful and defamatory comments about reputable member of the public and then hides behind the electronic curtain provided by the Internet. The defendant confuses freedom of speech with freedom of defamation. There are, undoubtedly, legitimate anonymous Internet posts: persons critical of autocratic or repressive regimes, for example, or legitimate whistleblowers. The defendant is not one of those people. The law will afford his posts all the protection that they deserve, which is to say none.

[21] In Busseri v. John Doe, [2012] O.J. No. 4465, 2012 ONSC 5385 (S.C.J.), I stated [at para. 23]:

The Court of Appeal, in Colour Your World v. Canadian Broadcasting Corporation (1998), 1998 1983 (ON CA), 38 O.R. (3d) 97, [1998] O.J. No. 510 (C.A.) described the nature of a defamatory statement:

14 I take as my starting point the following definition of defamation: A defamatory statement is one which has a tendency to injure the reputation of the person to whom it refers; which tends, that is to say, to lower him [or her] in the estimation of right-thinking members of society generally and in particular to cause him [or her] to be regarded with feelings of hatred, contempt, ridicule, fear, dislike, or disesteem. The statement is judged by the standard of an ordinary, right-thinking member of society. Hence the test is an objective one . . .

(R.F. Hueston & R.A. Buckley, Salmond on the Law of Torts, 21st ed. (London: Sweet & Maxwell, 1996) at 140 citing Sim v. Stretch 1936, 52 T.L.R. 669 at 671, and Vander Zalm v. Times Publishers (1980), 1980 389 (BC CA), 109 D.L.R. (3d) 531, 535, 543). [page598]

15 The standard of what constitutes a reasonable or ordinary member of the public is difficult to articulate. It should not be so low as to stifle free expression unduly, nor so high as to imperil the ability to protect the integrity of a person's reputation. The impressions about the content of any broadcast -- or written statement -- should be assessed from the perspective of someone reasonable, that is, a person who is reasonably thoughtful and informed, rather than someone with an overly fragile sensibility. A degree of common sense must be attributed to viewers.

[22] There is no possibility that an ordinary, right-thinking member of the public would not find that the posts exposed the plaintiff to contempt, ridicule, fear, dislike or disesteem. Indeed, as noted, Pepall J. has already found (at [2011] O.J. No. 3572, 2011 ONSC 4663, para. 19) that:

I believe that there is an important public interest in free speech, freedom of expression and the uncensored circulation of information. That said, the subject statements are clearly and manifestly defamatory and the defendant has not indicated an intention to justify the statements. Indeed, it is impossible to contemplate how justification could be forthcoming.

[23] There has been no attempt to file a defence or otherwise justify the defamatory posts. As the defendant has been noted in default, he is deemed pursuant to rule 19.02(1)(a) of the Rules to admit the truth of the allegations in the statement of claim. The plaintiff is plainly entitled to judgment: rule 19.06.

3. Should general damages be awarded?

[24] The leading decision on damages for the torts of defamation and libel is the famous case of Hill v. Church of Scientology (1995), 1995 59 (SCC), 24 O.R. (3d) 865, [1995] 2 S.C.R. 1130, [1995] S.C.J. No. 64. Casey Hill, who is now a judge of this court, was a Crown attorney. The Church of Scientology was under criminal investigation. Hill was advising the police. Manning and the church brought a baseless contempt motion against Hill, alleging that he had acted contrary to a court order. Manning read the allegations in the contempt motion while dressed in his barristers robe on the steps of Osgoode Hall before assembled members of the press, including the broadcast media. Cory J., on behalf of the court, described the scene [at para. 179]:

The publication of the libellous statement was very carefully orchestrated. Members of the press and the television media attended at Osgoode Hall in Toronto to meet two prominent lawyers, Morris Manning and Clayton Ruby. Osgoode Hall is the seat of the Court of Appeal and the permanent residence of the Law Society. The building is used as the background in a great many news reports dealing with important cases emanating from the Court of Appeal. In the minds of the public, it is associated with the law, with the courts and with the justice system. Manning went far beyond a simple explanation of the nature of the notice of motion. He took these very public steps without investigating in any way whether the allegations made were true. [page599]

[25] Hill sued and was successful. The Supreme Court upheld the jury's verdict and turned to the issue of damages. Cory J. stated [at para. 182]:

The factors which should be taken into account in assessing general damages are clearly and concisely set out in Gatley on Libel and Slander (8th ed.), supra, at pp. 592-93, in these words:

Section 1. Assessment of Damages

1451. Province of the jury. In an action of libel "the assessment of damages does not depend on any legal rule." The amount of damages is "peculiarly the province of the jury," who in assessing them will naturally be governed by all the circumstances of the particular case. They are entitled to take into their consideration the conduct of the plaintiff, his position and standing, the nature of the libel, the mode and extent of publication, the absence or refusal of any retraction or apology, and "the whole conduct of the defendant from the time when the libel was published down to the very moment of their verdict. They may take into consideration the conduct of the defendant before action, after action, and in court at the trial of the action," and also, it is submitted, the conduct of his counsel, who cannot shelter his client by taking responsibility for the conduct of the case. They should allow "for the sad truth that no apology, retraction or withdrawal can ever be guaranteed completely to undo the harm it has done or the hurt it has caused." They should also take into account the evidence led in aggravation or mitigation of the damages.

It is noteworthy that the plaintiff is a lawyer, just as it was of note in the Hill case [at paras. 177-78]:

It cannot be forgotten that at the time the libellous statement was made, Casey Hill was a young lawyer in the Crown Law office working in the litigation field. For all lawyers their reputation is of paramount importance. Clients depend on the integrity of lawyers, as do colleagues. Judges rely upon commitments and undertakings given to them by counsel. Our whole system of administration of justice depends upon counsel's reputation for integrity. Anything that leads to the tarnishing of a professional reputation can be disastrous for a lawyer. It matters not that subsequent to the publication of the libel, Casey Hill received promotions, was elected a bencher and eventually appointed a trial judge in the General Division of the Court of Ontario. As a lawyer, Hill would have no way of knowing what members of the public, colleagues, other lawyers and judges may have been affected by the dramatic presentation of the allegation that he had been instrumental in breaching an order of the court and that he was guilty of criminal contempt.

This nagging doubt and sense of hurt must have affected him in every telephone call he made and received in the course of his daily work, in every letter that he sent and received and in every appearance that he made before the courts of the province of Ontario. He would never know who, as a result of the libellous statement, had some lingering suspicion that he was guilty of misconduct which was criminal in nature. He would never know who might have believed that he was a person without integrity who would act criminally in the performance of his duties as a Crown counsel. He could never be certain who would accept the allegation that he was guilty of a criminal breach of trust which was the essential thrust of the libel. [page600]

[26] General damages are presumed in a defamation case on the basis that harm automatically and logically follows from the very publication of the false statement. The law presumes harm to reputation. At the motion before me, the plaintiff sought, and I granted, general damages in the amount of $100,000. This amount reflects the harm done to the plaintiff.

4. Should aggravated damages be awarded?

[27] In Hill, supra, Cory J. canvassed the purpose of aggravated damages [at paras. 188-91]:

Aggravated damages may be awarded in circumstances where the defendants' conduct has been particularly high-handed or oppressive, thereby increasing the plaintiff's humiliation and anxiety arising from the libellous statement. The nature of these damages was aptly described by Robins J.A. in Walker v. CFTO Ltd., supra, in these words at p. 111:

Where the defendant is guilty of insulting, high-handed, spiteful, malicious or oppressive conduct which increases the mental distress -- the humiliation, indignation, anxiety, grief, fear and the like -- suffered by the plaintiff as a result of being defamed, the plaintiff may be entitled to what has come to be known as "aggravated damages".

These damages take into account the additional harm caused to the plaintiff's feelings by the defendant's outrageous and malicious conduct. Like general or special damages, they are compensatory in nature. Their assessment requires consideration by the jury of the entire conduct of the defendant prior to the publication of the libel and continuing through to the conclusion of the trial. They represent the expression of natural indignation of right-thinking people arising from the malicious conduct of the defendant.

If aggravated damages are to be awarded, there must be a finding that the defendant was motivated by actual malice, which increased the injury to the plaintiff, either by spreading further afield the damage to the reputation of the plaintiff, or by increasing the mental distress and humiliation of the plaintiff. See, for example, Walker v. CFTO Ltd., supra, at p. 111; Vogel, supra, at p. 178; Kerr v. Conlogue (1992), 1992 924 (BC SC), 65 B.C.L.R. (2d) 70 (S.C.), at p. 93; and Cassell & Co. v. Broome, supra, at pp. 825-26. The malice may be established by intrinsic evidence derived from the libellous statement itself and the circumstances of its publication, or by extrinsic evidence pertaining to the surrounding circumstances which demonstrate that the defendant was motivated by an unjustifiable intention to injure the plaintiff. See Taylor v. Despard, supra, at p. 975.

There are a number of factors that a jury may properly take into account in assessing aggravated damages. For example, was there a withdrawal of the libellous statement made by the defendants and an apology tendered? If there was, this may go far to establishing that there was no malicious conduct on the part of the defendant warranting an award of aggravated damages. The jury may also consider whether there was a repetition of the libel, conduct that was calculated to deter the plaintiff from proceeding with the libel action, a prolonged and hostile cross-examination of the plaintiff or a plea of justification which the defendant knew was bound to fail. The general manner in which the defendant presented its case is also relevant. [page601] Further, it is appropriate for a jury to consider the conduct of the defendant at the time of the publication of the libel. For example, was it clearly aimed at obtaining the widest possible publicity in circumstances that were the most adverse possible to the plaintiff?

[28] The circumstances of this case are particularly egregious. The defendant has never apologized, retracted or in any way sought to justify his defamatory statements -- not that they are justifiable, as Justice Pepall observed. Even in the face of a statement of claim, the defendant continued to make defamatory posts. The amount of $50,000 reflects the gravity of the defamation and the culpability of the defendant. It also takes into account that the defendant sought to victimize the plaintiff and actually went so far as to send the Blogger posts to senior executives at the plaintiff's workplace.

5. Should punitive damages be awarded?

[29] In Hill, supra, Cory J. also canvassed the purpose of punitive damages [at para. 196]:

Punitive damages may be awarded in situations where the defendant's misconduct is so malicious, oppressive and high-handed that it offends the court's sense of decency. Punitive damages bear no relation to what the plaintiff should receive by way of compensation. Their aim is not to compensate the plaintiff, but rather to punish the defendant. It is the means by which the jury or judge expresses its outrage at the egregious conduct of the defendant. They are in the nature of a fine which is meant to act as a deterrent to the defendant and to others from acting in this manner. 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.

[30] See, also, Whiten v. Pilot Insurance Co., 2002 SCC 18, [2002] 1 S.C.R. 595, [2002] S.C.J. No. 19, at paras. 118-22 regarding the purposes of punitive damages.

[31] This case is an obvious one for punitive damages. There is no question that the defendant has acted maliciously and oppressive. As must be obvious from these reasons, the defendant's actions offend the court's sense of decency. Reflecting, as the court does, community standards, it is clear that a strong message of denunciation and deterrence must be sent. No doubt if the defendant is ever identified he will face contempt proceedings. That said, his malevolent refusal to comply with a court order only adds to the case for punitive damages.

6. Should costs on a substantial indemnity basis be awarded?

[32] Costs are within the discretion of the court: Courts of Justice Act, R.S.O. 1990, c. C.43, s. 131(1). Costs awards must be [page602] fair and reasonable in the circumstances, reflecting the reasonable expectations of the parties: Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291, [2004] O.J. No. 2634, 2004 14579 (C.A.).

[33] The defendant has persisted in driving up the plaintiff's legal costs, even in the face of a continuing refusal to comply with a court order. The defendant refused to even attempt to justify or remove manifestly defamatory posts in the face of a libel notice. This exposes him to substantial indemnity costs. This is not a case where the losing side has pursued a reasonable litigation strategy. This is a case where a party's conduct has deliberately and maliciously increased the other party's legal costs. Substantial indemnity costs are clearly in order here.

Motion granted.

Notes

1 It is unclear whether there is one defendant or multiple defendants. For ease of reference, I shall refer to the "defendant" and use the male pronoun, although it is unknown whether the defendant (or defendants) is (are) male or female.

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