Kumar a.k.a. Kukreja v. Khurana

[Indexed as: Kumar v. Khurana]

Ontario Reports

Ontario Superior Court of Justice,

Faieta J.

December 16, 2015

128 O.R. (3d) 203 | 2015 ONSC 7858

Case Summary

Torts — Defamation — Damages — Defendant publishing defamatory comments about plaintiff on Facebook — Plaintiff awarded general damages of $15,000 and aggravated damages of $15,000.

The defendant published comments about the plaintiff on Facebook describing him as an extortionist who was obsessed with becoming a millionaire. The plaintiff sued the defendant for damages for defamation. [page204]

Held, the action should be allowed.

The statements complained of were defamatory. The plaintiff was awarded general damages in the amount of $15,000 and aggravated damages in the amount of $15,000.

Cases referred to

Barrick Gold Corp. v. Lopehandia (2004), 2004 12938 (ON CA), 71 O.R. (3d) 416, [2004] O.J. No. 2329, 239 D.L.R. (4th) 577, 187 O.A.C. 238, 23 C.C.L.T. (3d) 273, 49 C.P.C. (5th) 1, 31 C.P.R. (4th) 401, 131 A.C.W.S. (3d) 655 (C.A.); Grant v. Torstar Corp., [2009] 3 S.C.R. 640, [2009] S.C.J. No. 61, 2009 SCC 61, 204 C.R.R. (2d) 1, 258 O.A.C. 285, EYB 2009-167615, J.E. 2010-8, 314 D.L.R. (4th) 1, 397 N.R. 1, 79 C.P.R. (4th) 407, 72 C.C.L.T. (3d) 1, 183 A.C.W.S. (3d) 1173; Hill v. Church of Scientology of Toronto (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, REJB 1995-68609, 56 A.C.W.S. (3d) 495; Mina Mar Group Inc. v. Divine, [2011] O.J. No. 785, 2011 ONSC 1172, 198 A.C.W.S. (3d) 356 (S.C.J.)

ACTION for damages for defamation.

Hardev Kumar, on his own behalf.

No one appearing for defendant.

[1] FAIETA J.: — The plaintiff brings this defamation action in relation to certain statements that were published by the defendant on Facebook.

[2] This action is now undefended. On November 26, 2014, this court ordered that the defendant provide particulars of his statement of defence within 30 days. On May 21, 2015, this court ordered that the statement of defence be struck for failure to comply with this court's order dated November 26, 2014. On June 8, 2015, the defendant was noted in default.

[3] The plaintiff's motion for default judgment was heard on August 5, 2015. Justice Lederman ordered that this action proceed to trial. Amongst other things, he stated:

Context is crucial in determining the defamatory sense of the words. Issues as to the effect on the plaintiff's life, and the conduct of the defendant can only be properly determined at a trial with oral evidence presented.

[4] The trial was adjourned by Justice C.J. Brown on September 14, 2015, in order to ". . . permit the plaintiff to provide all documentary evidence which he does not have today. The Plaintiff will bring all documentary evidence in support of his action with him to trial and will also ensure that his witnesses are at the trial".

[5] For the reasons described below, I have awarded judgment in the amount of $30,000 to the plaintiff plus costs of $2,000. [page205]

Backround

[6] The plaintiff is 73 years of age. The plaintiff is a former immigration consultant and has been retired since 2008. He is married and has four adult children.

[7] The defendant is the plaintiff's nephew.

[8] The plaintiff testified that he has several siblings. One sibling, Jagdish Kukreja, lives in India and took care of his parents. Jagdish Kukreja inherited land in India from his parents following their death. The plaintiff testified that he was initially upset but he saw his father's will following a trip to India, and he came to accept that his father wanted to bequeath that land solely to Jagdish Kukreja.

[9] In or about September 2013, the plaintiff learned that the defendant had posted the following statements on his Facebook page ("Facebook statements"):

David told me he "expected" $1 million cash from me -- silently, I thought you must be kidding me.

David is in need of money. He never planned for retirement. He is looking for payback for sponsoring family members to Canada again, not my problem.

David is Jagdish Kukreja's younger brother residing in Toronto, Canada and disowned by Jagdish for having a love marriage in 1967.

[10] The plaintiff's evidence is that he is the only brother of Jagdish Kukreja that resides in the Toronto area. I find that the defendant was referring to the plaintiff when he used the name "David". I also find that the plaintiff's family and relatives would have understood that the plaintiff was being referenced by the defendant in those statements.

[11] Further, two private messages were sent by the defendant to the plaintiff's daughter Sangita Birla on April 6, 2014. Those two messages are identical. In specific reference to the plaintiff, they state, in part, that

Kumar is stating I called him a terrorist and extortionist. I believe he resorted to terrorist style tactics by sending hate mail to both me and his brother in India and having others make threatening phone calls on his behalf. Since reporting the incident to local police last year, Kumar has given up on such tactics.

As far as being an extortionist, I believe he is and will continue on the same path unless someone puts a stop to him. I am the one who will stop him one way or another. [page206]

His obsession to become a millionaire in his final years on Earth does not seem to go away. He needs help from family members if anyone dares to step in and help[.]

Kumar is a very angry and greedy man. Shame on a man his age seeking compensation for his own acts/behavior from many years ago and now for which he is paying the price.

[12] The plaintiff testified that his daughter Sangita Birla showed him the above statements to him. Similarly, the plaintiff's daughter Richa Kumar stated that Sangita Birla showed her the above statements. Ms. Kumar stated that one or two cousins have mentioned the Facebook statements to her. The plaintiff's son, Anup Kumar, stated that he has spoken to at least 15 relatives that have viewed the Facebook statements. He states that at least 20 members of their extended family in Canada, India and other parts of the world frequent the Facebook page on which the Facebook statements were published. He believes that hundreds of people may have read the Facebook statements.

[13] The plaintiff testified that his esteem has been diminished since the Facebook statements were published and that his happiness has been "stolen". He is a proud man and he feels that his standing in the community has been diminished and, as a result, he has been withdrawn. As a consequence, he has not returned to India to visit his relatives since 2013. The plaintiff has sought counselling. He testified that he used the services of Dr. Jason Plasky, a psychologist, on six occasions in 2014. He provided a one-page report from Dr. Plasky dated January 20, 2014, which noted that the plaintiff was seeking treatment due to distress over derogatory comments about him on Facebook. No other reports were provided. The plaintiff's family doctor has referred him to Dr. Shyfield, a psychiatrist, whom he has seen on three occasions in 2015 with the latest visit in July 2015. He states that Dr. Shyfield has prescribed him medication. The plaintiff has no history of depression and has never used the services of a psychologist or psychiatrist prior to this episode.

[14] Several witnesses corroborated that the publication of the Facebook statements had an impact on the plaintiff's well-being. Anup Kumar testified that his father is upset by the false allegations reflected in the Facebook statements. He states that his father has been reserved and embarrassed since the Facebook statements were published. Richa Kumar testified that her father has been withdrawn and sad since the Facebook statements were published. The plaintiff's friend, Prakash Sapra, has known the plaintiff for five years. He has noticed a change in the plaintiff's behaviour since the Facebook statements were [page207] published. He states that the plaintiff speaks less, appears depressed and appears to have less vigour. The plaintiff's neighbour, Mark Manocchio, has known the plaintiff for 15 years. He testified that since the Facebook statements were published the plaintiff has appeared upset and "down". He stated that the plaintiff is less outgoing.

[15] None of the witnesses knew if the Facebook statements remain posted on Facebook.

Analysis

[16] In Grant v. Torstar Corp., [2009] 3 S.C.R. 640, [2009] S.C.J. No. 61, 2009 SCC 61, the Supreme Court of Canada stated, at paras. 28 and 29:

A plaintiff in a defamation action is required to prove three things to obtain judgment and an award of damages: (1) that the impugned words were defamatory, in the sense that they would tend to lower the plaintiff's reputation in the eyes of a reasonable person; (2) that the words in fact referred to the plaintiff; and (3) that the words were published, meaning that they were communicated to at least one person other than the plaintiff. If these elements are established on a balance of probabilities, falsity and damage are presumed, though this rule has been subject to strong criticism. . . . The plaintiff is not required to show that the defendant intended to do harm, or even that the defendant was careless. The tort is thus one of strict liability.

If the plaintiff proves the required elements, the onus then shifts to the defendant to advance a defence in order to escape liability.

[17] In my view, the Facebook statements and the private e-mails meet the three-part test for defamation.

[18] I adopt the following statements made by Justice Perell in Mina Mar Group Inc. v. Divine, [2011] O.J. No. 785, 2011 ONSC 1172 (S.C.J.), at paras. 11-13:

The factors to consider in determining general damages include: (a) the plaintiff's position and standing; (b) the nature and seriousness of the defamatory statements; (c) the mode and extent of the publication; (d) the absence or refusal to retract the libel or to apologize for it; (e) the conduct and motive of the defendant; (f) the presence of aggravating or mitigating circumstances[.]

Given the power of the Internet as a medium of communication, the factor of the mode and extent of publication is a particular significant consideration in assessing damages in Internet defamation cases.

General damages in defamation cases serve three functions: (1) consolation to the plaintiff for the distress suffered from the publication of the defamation (2) to repair the harm to reputation, including, where relevant, business reputation; and (3) as a vindication of reputation. General damages are awarded at large and the plaintiff need not show a loss[.][page208]

[19] In Hill v. Church of Scientology of Toronto (1995), 1995 59 (SCC), 24 O.R. (3d) 865, [1995] 2 S.C.R. 1130, [1995] S.C.J. No. 64, the Supreme Court of Canada noted that awards of general damages for defamation were generally within the $20,000-$30,000 range between 1987 and 1995. At para. 169, the court stated:

Rather, the whole basis for recovery for loss of reputation usually lies in the general damages award. Further, a review of the damage awards over the past nine years reveals no pressing social concern similar to that which confronted the courts at the time the trilogy was decided. From 1987 to 1991, there were only 27 reported libel judgments in Canada, with an average award of $30,000. Subsequent to the decision in this case, from 1992 to 1995, there have been 24 reported libel judgments, with an average award of less than $20,000. This latter figure does not include the award in Jill Fishing Ltd. v. Koranda Management Inc., [1993] B.C.J. No. 1861 (S.C.), which involved the assessment of damages for a number of different causes of action. Therefore, there is no indication that a cap is required in libel cases.

[20] In assessing damages, I am also guided by awards given in other cases, such as Barrick Gold, referenced below, and others which are described in Mina Mar Group Inc., at paras. 14-21.

[21] Aggravated damages may be awarded to take into account the additional harm caused to the plaintiff's feelings by the defendant's outrageous and malicious conduct. 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.

[22] In my view, the language of the Facebook statements clearly reflects the ill will felt by the defendant toward the plaintiff.

[23] Finally, in assessing damages I also note that the defamatory statements were posted on Facebook. In Barrick Gold Corp. v. Lopehandia (2004), 2004 12938 (ON CA), 71 O.R. (3d) 416, [2004] O.J. No. 2329 (C.A.), the Ontario Court of Appeal awarded $75,000 for general damages. The court stated, at paras. 31 and 34:

Communication via the Internet is instantaneous, seamless, interactive, blunt, borderless and far-reaching. It is also impersonal, and the anonymous nature of such communications may itself create a greater risk that the defamatory remarks are believed.

. . . Internet defamation is distinguished from its less pervasive cousins, in terms of its potential to damage the reputation of individuals and corporations, by the features described above, especially its interactive nature, its potential for being taken at face value, and its absolute and immediate worldwide ubiquity and accessibility. The mode and extent of publication is therefore a particularly significant consideration in assessing damages in Internet defamation cases.

[ Citation omitted] [page209]

[24] Taking into account the above considerations, I assess damages for the defamatory statements made by the defendant as follows. I order that the defendant pay the sum of $15,000 in general damages and the sum of $15,000 in aggravated damages to the plaintiff.

[25] The plaintiff also seeks punitive damages. However, in my view, the amount of general and aggravated damages awarded is sufficient to achieve the goals of punishment and deterrence served by an award of punitive damages.

[26] I award the plaintiff the sum of $2,000 for his costs of this motion, as claimed, inclusive of disbursements and HST. Such costs shall be paid by the defendant forthwith.

Conclusions

[27] I order that the defendant pay the sum of $32,000 to the plaintiff which is comprised of $15,000 to the plaintiff for general damages, $15,000 for aggravated damages and $2,000 in costs.

Action allowed.

End of Document