Nassri v. Homsi, 2017 ONSC 4554

CITATION: Nassri v. Homsi, 2017 ONSC 4554

COURT FILE NO.: CV-16-554551

DATE: 20170728

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

AMJAD NASSRI

Plaintiff

– and –

MICHAEL HOMSI

Defendant

Elizabeth Barrass, for the Plaintiff

Michael Homsi, In person

HEARD: May 31, 2017

LEDERER J.

1This was a motion for summary judgment.

INTRODUCTION

2The Statement of Claim and the Notice of Motion both assert claims for defamation (libel) and intentional interference with economic relations. At the outset, counsel for the plaintiff, Amjad Nassri, indicated that she was proceeding only with the claim for defamation.

3The defendant did not appear and was not represented. The file contains affidavits of service with respect to the Motion Record, the Factum and the Book of Authorities. The hearing commenced at approximately 10:40 a.m. and continued for about one hour.

BACKGROUND

4The plaintiff worked with “Friends of Sryria”, a charitable organization that assists Syrian refugees. The defendant was its Managing Director. The plaintiff believed that the defendant was misappropriating funds given to the charity in support of its work and using that money for his own, private purposes.

5The plaintiff confronted the defendant.

6The defendant began a campaign of threats and intimidation directed at the plaintiff. This campaign included publication on the internet of a statement that the plaintiff had stolen money from the Friends of Syria. This was incorrect. The difficulty this caused the plaintiff was exacerbated by the fact that the publication tied the supposed robbery of the Friends of Syria to a statement suggesting that the plaintiff was a bank robber whose sentence had been reduced to avoid deportation. In fact, several years earlier the plaintiff had been convicted of a criminal offence “relating to a bank robbery”. In the intervening period the plaintiff had “moved on”. He had obtained a Bachelor of Commerce degree and runs “a successful snow-clearing business”. As submitted by his counsel this aggravated the damage or harm caused by the publication. It is one thing to simply deny a false allegation; it is more difficult to deny the substance but have to explain an ancillary statement that while true is set apart in time and context. I will return to this idea.

7The posting was sent to 456 people. This included “several prominent individuals involved in Syrian aid initiatives”.

8There was a further publication. Using the FOS [Friends of Syria] Facebook profile the defendant posted two articles that related to the sentencing of the plaintiff arising from his involvement in the robbery years before. The profile in which this appeared is publically viewable.

9Upon learning of these postings, with the assistance of counsel, the plaintiff served the defendant with a letter intended to be treated as notice pursuant to the Libel and Slander Act, R.S.O. 1990 Ch. L.12, section 5.1. The letter asked that the defamatory posting be removed and that an apology be posted.

10The defendant has done neither.

11There is more to the campaign of intimidation undertaken by the defendant. On three occasions he visited the home the plaintiff shares with his parents. He has told the parents of the plaintiff in the event that the plaintiff did not continue to donate funds to the Friends of Syria that he (the defendant) had arranged for the deportation of the family. On another occasion, he damaged an automobile of the plaintiff and, on a further occasion, placed his foot in the doorway of the home so that it could not be closed. The police were called. They instructed the defendant to stay away from the home.

12The defendant has left a series of threatening and profane voicemails and text messages. I quote from two of them:

Ahhh, now..ahhh, I’ve been nice enough now. No longer nice. Fuck you. No longer nice. Ok? Hassam almost put me in jail yesterday. I was driving not knowing that my driver’s license was suspended. It’s costing me over $1600 for fucken Hassam I was going to get the cheque for him to pay him for [inaudible] I don’t know for what? You brought Hassam, you deal with that problem or else you’re gonna have to deal with me. [inaudible] when I get upset, you better watch out. Not only you lose the contract, you’re gonna lose more than that and I guarantee that. [inaudible] Ok? Let’s see. You call me as soon as you get this message.

And

A.J., it’s the 1^st today. I didn’t get the cheque which means and I am serious. No more kidding. You [inaudible] to be an asshole and a loser. It means your contract is over. I’ll go to London and make sure it gets transferred. Number two, it means I am taking it personally – Michael Homsi at you and I’m going to fucking make your life miserable. If you think I’m your match, you check yourself. You’re going to have the worst life. It’s me and you and your record. You’re going to the front page newspapers in every mosque and I guarantee you that. You want to fuck around with me? Let’s go.

ISSUES

13There are two issues for the court to determine. In each, the question is, whether there is a genuine issue requiring a trial. Can the court, without a trial, determine:

(a) whether the plaintiff has been defamed, and

(b) if the answer to (a) is in the affirmative the value of any damages.

ANALYSIS

Was the plaintiff defamed?

14In Grant v. Torstar Corp., 2009 SCC 61, 2009 S.C.C. 61, the Supreme Court of Canada has set out the test for defamation as follows:

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.

(Grant v. Torstar Corp., supra at para. 28)

15Each of the three elements of the test have been satisfied:

(1) The statement, made by the defendant, that the plaintiff had “… robbed Friends of Syria” lowers the reputation of the plaintiff in the eyes of a reasonable person. The statement is an allegation of criminal conduct;

(2) The plaintiff was explicitly named in the defamatory posting of the defendant;

(3) The words were published over the Internet and shared with 456 people.

16There is no evidence from the defendant. There is no suggestion that there is any issue as to these facts or how they are to be applied in the case at hand. There is no genuine issue requiring a trial. The plaintiff has been defamed.

Damages

17The paragraph from Grant v. Torstar Corp., supra, quoted above continues. The Court explains that defamation is a tort of strict liability:

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.

(Grant v. Torstar Corp., supra at para. 28)

18The presence of damage is established by the finding that there was defamation. General damages are presumed once the tort has been made out. They arise by inference of law and do not require proof of actual injury. As reported in Grant v. Torstar Corp., supra still at para. 28, the only exception is that slander requires proof of special damages, unless the impugned words were slanderous per se: R. E. Brown, The Law of Defamation in Canada (2nd ed. (loose-leaf)), vol. 3, at pp. 25-2 and 25-3. In defamation, damages reflect what the law presumes to be the natural or probable consequences of the defendant’s conduct and the harm which normally results from the tort. General damages include injury to the plaintiff for loss of esteem and injury to the plaintiff’s feelings (Myers v. Canadian Broadcasting Inc., 1999 CarswellOnt 3735 at paras. 156-157, rev’d in part on other grounds and aff’d 2001 CarswellOnt 2037 (C.A.), leave to appeal to the S.C.C. refused [2001] S.C.C.A. No. 433).

19Despite the general nature of the appraisal this recognition of damage invites, there must be some instruction or guidelines that direct the inquiry and inform the conclusion. In Barrick Gold Corp. v. Lopehandia, 2004 CanLII 12938 (ON CA), 2004 CarswellOnt 2258 (ONCA) (in turn drawing on Hill v. Church of Scientology (1995), 1995 CanLII 59 (SCC), [1995] 2 S.C.R. 1130, 25 C.C.L.T. (2d) 89, 126 D.L.R. (4th) 129, 24 O.R. (3d) 865 (note) the Court of Appeal of Ontario provided factors that can be used to assess damages in an action for defamation:

20The standard factors to consider in determining damages for defamation are summarized in Hill v. Church of Scientology. They include:

(1) the plaintiff's position and standing;

(2) the nature and seriousness of the defamatory statements;

(3) the mode and extent of publication;

(4) the absence or refusal of any retraction or apology;

(5) the whole conduct and motive of the defendant from publication through judgment; and

(6) any evidence of aggravating or mitigating circumstances.

(Barrick Gold Corp. v. Lopehandia, supra at para 29 referring to Hill v. Church of Scientology, supra at p. 1203)

Position and Standing

21In looking at the plaintiff’s standing in the community I return to the fact that, in the past, as a result of his association with a robbery, he had been convicted of a criminal offence. The evidence presented indicates that the plaintiff had worked hard to re-establish his reputation in the community. He had obtained a degree, started a successful business and contributed through his charitable work, in particular with the Friends of Syria. At an earlier time, the defendant, as the managing director of Friends of Syria had prepared a letter of reference. This letter reflects on the positive qualities the defendant identified in the plaintiff, his spearheading of a food and clothing drive referred to by the defendant as a “monumental task” and the role the plaintiff played in the opening of a school in Lebanon for the children of refugees. In the face of these efforts I find it particularly thoughtless, unfeeling and heartless to defame the plaintiff by reference to a mistake from the past in a fashion which attempts to associate that history with the false accusation alleging theft from the charity with which the plaintiff and the defendant were both working. Having achieved a new and fresh standing within his community it would be difficult to explain the past while denying allegations associated with the present.

Nature and Seriousness of the Defamatory Statements

22In the context of charitable work it is difficult to conceive of anything more serious than an allegation of having stolen money given and dedicated to helping those in need. It is telling that the “campaign” of the defendant within which this statement was made was in response to a confrontation in which the plaintiff revealed his concern that it was the defendant who had converted funds contributed to the charity to his own use. The Statement of Defence appears to provide a response. It states at paragraph 4:

The defendant states that the plaintiff provided him with $6,000 by way of 3 checks from Snow Wrangler [the snow clearing business of the plaintiff], being FOS share of net profits and that such checks were deposited to the bank account of FOS and such funds were never misappropriated by the defendant.

23In the absence of any evidence to support this allegation, in the absence of the defendant and any submissions that might be made on his behalf, this pleading does nothing to answer the case made out against the defendant. In any case, defamation and the publication of statements that are untrue for the purpose of harming another, in this case the plaintiff, is not a response that can be excused.

The Mode and Extent of Publication

24Publication on the internet has been set apart from more traditional forms:

It is true that in the modern era defamatory material may be communicated broadly and rapidly via other media as well. The international distribution of newspapers, syndicated wire services, facsimile transmissions, radio and satellite television broadcasting are but some examples. Nevertheless, 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.

(Barrick Gold Corp. v. Lopehandia, supra at para 34)

25Internet distribution requires particular consideration:

Thus, of the criteria mentioned above, the mode and extent of publication is particularly relevant in the Internet context, and must be considered carefully. 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: see Vaquero Energy Ltd. v. Weir, [2004] A.J. No. 84, 2004 ABQB 68, at para. 17.

(Barrick Gold Corp. v. Lopehandia, supra at para 31)

26In this case, use of the internet allowed the defendant to direct the publication to the 456 people to whom he sent the posting. In his affidavit the plaintiff identifies “several” of these as “prominent individuals involved in Syrian aid initiatives”. The defendant followed up by posting articles on the FOS Facebook Profile. The FOS Profile has generated 4,300 “likes”. What this points out is that the defendant has used the internet both to deliver defamatory material to specific individuals and more generally to anyone who has cause to read the FOS Facebook profile. To put it differently he has attempted to make comprehensive use of what publication over the internet offers.

The Absence or Refusal of any Retraction or Apology

27The absence of an apology or retraction aggravates the libel (Barcan v. Zorkin, 1991 CanLII 5831 (AB KB), 1991 CarswellAlta 43, [1991] A.W.L.D. 339, [1991] A.J. No. 271, 26 A.C.W.S. (3d) 149 at para. 25).

28A notice was provided as required by the Libel and Slander Act, section 5.1. The policy purpose behind this, in part, is to allow the party committing the tort, in short order, to ameliorate its impact and effect. The defendant chose not to respond and, in fact, to continue his campaign against the plaintiff. It would appear that his efforts went to the extent of threatening the plaintiff should he decide to commence litigation against the defendant. Certainly the following could be understood in this way:

[inaudible] you stupid? You know like when things go that way, you can’t reverse them. Don’t talk to lawyers. Don’t make it any bigger than it is `cause you lose. You know, you know, I, I, go through with things, you know. I don’t care. I go all the way but don’t get yourself any further in shit. [inaudible]…my lawyer. You crazy.

The Whole Conduct and Motive of the Defendant

29The “whole conduct” of the defendant demonstrates a desire and ambition to disrupt the life of the plaintiff and his family. How else can one explain the visits to their home, the damage to the vehicle, the foot in the door and the threats of deportation?

30The motive is less easy to discern. Presumably it was to intimidate the plaintiff such that nothing further would be said in respect of any accusations made against the defendant or to stop any further communication between the plaintiff and the defendant as well as any others that might have an interest in the issues surrounding any dispute between them. It goes without saying that nothing is apparent that could justify what the defendant has said and done.

Evidence of Aggravating or Mitigating Circumstances

31It follows from what has already been said in these reasons that the actions, comments and threats of the defendant that came after the internet publications stand as aggravating circumstances. There is nothing that stands in mitigation of what he has done.

CONCLUSION

32I regard this as a serious and significant matter. We cannot allow people to misuse their fellow citizens as has been done here. People have a right to live without the fear of being lied about and harassed with malice as has occurred in this case.

33On the other hand damages are not elastic or open ended in their scope.

34In the circumstances I award damages, as follows:

(1) for the defamation: $50,000;

(2) for the factors that have served to aggravate that harm: $20,000;

(3) the recklessness and lack of concern demonstrated throughout but particularly in involving others (the parents of the plaintiff) attracts further disapproval of the Court and the recognition that punitive damages are called for: $20,000.

35Judgment to the plaintiff: $90,000.

COSTS

36The plaintiff seeks costs on a substantial indemnity scale. A Bill of Costs was provided. It supports costs on a partial indemnity scale of $7,972.04. It also demonstrates “actual” full indemnity costs at $10,8456.19. Neither of these represents costs on a substantial indemnity scale. After some discussion with the Court it was proposed that costs on such a scale would be $9,500 (approximately halfway between the two amounts provided).

37In the circumstances, given the nature of the activity undertaken by the defendant, costs at the upper scale are justified, even called for. What the defendant did is repugnant. Costs to be paid by the defendant to the plaintiff in the amount of $9,500 inclusive of fees, disbursements and any applicable tax.

Lederer J.