COURT FILE NO.: CV-13-486945
DATE: 20180523
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Oswald P. Magno
Plaintiff
– and –
Balita Media Inc. (Owner/Operator of Balita Newspaper), Teresita Cusipag (In Her Capacity as Editor/Publisher of Balita Newspaper), Teresita Cusipag (In Her Personal Capacity), and Romeo P. Marquez
Defendants
Michael Alexander and David A. Potts, for the Plaintiff
Roy Respicio, for the Defendants
HEARD: January 22 and 25, 2018
REASONS
J. E. FERGUSON J.:
OVERVIEW
[1] The plaintiff Oswald Magno ("Magno") brings this motion for summary judgment against the defendants, Balita Media Inc. ("Balita"), Teresita Cusipag ("Cusipag") and Romeo Marquez ("Marquez") (collectively, "the defendants") in respect of certain publications which he alleges to be defamatory. I heard submissions on the above two dates and have subsequently received voluminous written materials, the last being on February 26, 2018.
[2] For the reasons below, I have determined that this is an appropriate case for summary judgment. I have also determined that the defendants have defamed Magno, and cannot avail themselves of any defences to his claim. I have awarded general/aggravated damages in the amount of $300,000 and punitive damages in the amount of $110,000 jointly and severally against the defendants.
BACKGROUND
[3] Magno was a lawyer in the Philippines before immigrating to Canada in 1972. He became a businessman, and started a consulting business in the field of business development. He was very active and well respected in the Filipino community. Among other things, he was recognized as a recipient of the Queens Diamond Jubilee in 2012.
[4] Cusipag is the publisher and editor of Balita, a newspaper that is published twice monthly and caters mainly to the Filipino-Canadian communities in the Greater Toronto Area (“GTA”), including the surrounding cities of Markham, Brampton, Mississauga and Hamilton. Balita is also available on the internet. Cusipag is Balita’s sole shareholder.
[5] Marquez is an investigative reporter who holds the title of associate editor at Balita; he writes a column for Balita; he receives monthly compensation for his services; and is considered by the Canada Revenue Agency to be an employee of Balita. Marquez also is the independent owner of a media organization called PhilVoice News / Currents and Breaking News (available only on the internet) and has various YouTube channels.
[6] According to Cusipag and Marquez, Balita is the largest newspaper servicing the Filipino community in the GTA. Balita also maintains a website where current and past issues and articles are posted.
[7] The conflict between the parties apparently began in 2012. In March of that year, Magno forwarded an email containing a news report critical of Marquez to Magno’s alumni association. In November of that year, Marquez and Cusipag entered into an email correspondence concerning the PAMANA Cultural Association, of which Magno was the president. Cusipag was offended by this correspondence. In December of 2012, Magno and others commenced a petition to the Philippine Press Club of Ontario (the “PPCO”) complaining about the journalism practiced by the defendants.
[8] There were issues between the parties. One main issue was that Magno was a supporter of the late Senator Enverga (“Senator Enverga”) and his wife. Senator Enverga’s wife ran a competing beauty pageant with Cusipag. They were rivals. It was personal and nasty. Cusipag and Balita were found to have defamed Senator Enverga in Senator Enverga v. Balita, et. al., 2016 ONSC 4512 (“Enverga”).
[9] From December 7, 2012 to January 24, 2014, the defendants published 35 articles, in print and online, in which they referred to Magno as (among other things) an arrogant gasbag, a shameless bully, a habitual liar, a fraudster, etc.
[10] The defendants continued with the publications even after being served with a notice of an intended action for libel and a statement of claim.
[11] The words complained of as being false and defamatory break down into seven categories (as broken down by Magno’s counsel), as follows:
Gasbag Invectives. 14 articles, published over an 11-month period from December 7, 2012 to November 11, 2013, refer to Magno as a “gasbag”, “arrogant gasbag”, “shameless gasbag”, “eminent gasbag”, and “hapless gasbag”.
Bully Invectives. 19 articles, spanning a 12-month period from December 7, 2012 to January 3, 2014, refer to Magno as a “bully”, “ignorant bully”, “untethered bully”, “shameless bully”, and the “community bully”.
Allegations of Threats and Blackmail. 22 articles, that span a 13-month period from December 7, 2012 to January 6, 2014, allege that Magno had made threats and committed blackmail.
Allegations of Dishonesty. 17 articles, that span a 9½ month period from January 1, 2013 to September 21, 2013, state that Magno was dishonest and given to lying.
Allegations of Fraud. 13 articles, published over a 6½ month period from January 10, 2013 to July 19, 2013, allege that Magno had committed fraud, including falsification of documents, in relation to a community-based petition (the “PPCO Petition”), submitted to the Philippine Press Club of Ontario (“PPCO”), and also in relation to an earlier petition, which was submitted by a group of University of the Philippines Alumni Association members to the council of the association (the “UPAA Petition”).
Shady Character and Unwholesome Couple Innuendo. One article which also repeated the gasbag invectives, bully invectives and threat and blackmail imputations, held Magno as a person who consorts with shady characters and whose marriage was a sham.
Descriptions of Magno as a Wicked and Vicious Person. In an editorial that Cusipag penned and prominently displayed as the top headline on the front page of Balita, Ms. Cusipag characterized Magno as a sanctimonious, overbearing and mean human being who looks down on others with disdain and contempt; she also represented him as a cruel and ruthless person who takes advantage of weak and vulnerable people and otherwise lacks moral scruples.
[12] Exhibit 1 provides a more specific and complete list of the words complained of. The articles were primarily authored by Marquez but Cusipag participated, endorsed and published the articles. She also provided editorials and emails. Cusipag shared an email sent from Magno to Marquez to create a controversy so that Marquez would sensationally write for the purpose of (a) punishing Magno for allegedly disrespecting her; (b) striking back at Magno for passing on the ABC News Report/Video critical of Marquez; (c) chastising Magno for his support for her personal enemies (the Envergas); and (d) increasing the readership of her paper and profiting from it accordingly. Marquez was clearly motivated by Magno’s “passing on” of the ABC News Report/Video about him and lashed out at Magno in many ways and times.
[13] The defendants appear to have abandoned any defence to the last two categories set out in paragraph 11 in that they provided no submissions with respect to these categories of alleged defamatory behaviour. While this in itself is not determinative of the result on this motion, it is a factor to consider at least with respect to those two categories.
PRELIMINARY MATTERS
[14] Before moving on to the main issues in this case, I must deal with the following three preliminary issues:
a) the appropriateness of summary judgment in this case;
b) the failure to plead particulars in the statement of defence;
c) the admissibility of affidavits.
I will deal with each of these issues in turn.
a) Appropriateness of Summary Judgment
[15] Summary judgment motions must be granted whenever there is no genuine issue requiring a trial: Rules of Civil Procedure, R.R.O. 1990. Reg. 194, Rule 20.04(2)(a). There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (i) allows the judge to makes the necessary findings of fact; (ii) allows the judge to apply the law to the facts, and (iii) is a proportionate, more expeditious and less expensive means to achieve a just result: Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 49.
[16] Whether words are defamatory arise from the meaning of the words published. A trial is not necessary for this determination.
[17] All of the evidence is before the court. The defendants did not ask for an adjournment to deal with their pleading and affidavit issues when asked if the same was required.
[18] The issues are straightforward; no expert evidence is required and no issues of credibility are at play.
[19] There are no issues requiring a trial in this matter. Accordingly, a summary judgment motion is the most proportionate, expeditious and least expensive means to adjudicate these issues.
b) Failure to plead particulars in the statement of defence
[20] A defendant is required to plead particulars of justification/truth in their statement of defence. The basis for this rule is that a plaintiff should be fully informed of a defendant’s case. The evidence that may be introduced at trial is therefore limited to the pleaded particulars of justification/truth. In the absence of particulars, the defendant cannot introduce evidence in support of the defence at trial: Raymond E. Brown, Brown on Defamation, loose-leaf, 2nd ed. (Toronto: Thomson Reuters, 2017), at 10-121 (“Brown”); Yorkshire Provident Life Ins. v. Gilbert, [1895] 2 Q.B. 148, Govenlock v. London Free Press Co. (1915), 1915 555 (ON CA), 35 O.L.R. 79 (C.A.) at 83, and Parkland Chapel v. Edmonton Broadcasting (1964), 1964 480 (AB KB), 45 D.L.R. (2d) 752.
[21] In this case, the defendants have provided absolutely no particulars or facts with respect to this defence in their pleadings. They simply plead at paragraphs 22 and 25 of their statement of defence that “to the extent that the defendants published statements regarding Magno, they were true and justified" and that with respect to their defence of justification/truth "there are facts underlying the words complained of that substantiate the words alleged defamatory".
[22] When this issue was raised at the start of the motion I advised counsel that despite my longevity as a judge, I had not encountered a defamation matter and was not aware of this law regarding the pleadings. As it appeared that counsel for the defendants was similarly unaware of this pleading issue, I asked if an adjournment was required to deal with the pleadings and was told “no”. After asking if the defendants wished to provide submissions on this issue, I received submissions from the defendants’ counsel on February 21, 2018. Magno’s counsel responded as a result on February 26, 2018. The motion proceeded on the pleadings and materials that were before the court on January 22 and 25, 2018. I have reviewed all materials that were provided since January 25, 2018. Nothing has changed regarding the defendants’ flawed pleading when it comes to justification/truth.
[23] I do not agree with the defendants’ submission that they have provided sufficient particulars in their statement of defence. They do not state any facts, such as specific acts or statements by Magno, that would justify their imputations of dishonourable and unlawful conduct and other defamatory statements made against him. They rely on a bald, flawed pleading.
[24] Objectively, the particulars in the statement of defence were neither sufficient nor specific enough for Magno to know whether the defendants had sufficient and sustainable grounds to support the truth of the statements complained of.
[25] There are approximately 35 articles containing alleged defamatory statements. Each article gives rise to a separate cause of action. Each have potential defences. Nothing is particularized for each article. The defendants have not indicated which of their alleged particulars contained in their defence apply to which alleged libel. Despite being alerted to this issue the defendants took no steps to request leave to amend their defence and they did not request an adjournment. They tried to repair their problems in their original supplementary factum in which they simply allege that Magno was aware of the case he had to meet and provided no facts or particulars that would actually make Magno aware of the case to meet for each of the 35 articles complained of in the action.
[26] The court is faced with a bald plea of justification/truth without particulars. In the absence of particulars pleaded no particular evidence can be adduced. There is no admissible evidence to support the defendants’ justification/truth defence. The defendants attempted unsuccessfully to explain the defendants’ actions/defences in unhelpful, non‑responsive submissions.
c) Admissibility of affidavits
[27] The timetable for this motion was set on June 30, 2017. Magno’s motion record was to have been served and filed by July 15, 2017; the defendants’ motion record was to be served and filed by July 31, 2017; and cross-examinations were to have been completed by August 20, 2017. Magno’s factum was to be served and filed by September 15, 2017 and the defendants’ factum to be served and filed by September 30, 2017. The defendants met no deadlines.
[28] The defendants' materials were woefully late. Cusipag swore her affidavit on December 11, 2017 and her cross-examination took place on December 21, 2017. Magno’s cross‑examination on his affidavits took place on December 22, 2017. Marquez swore and provided his affidavit January 12, 2018, well beyond the timeline and after the cross‑examinations of Cusipag and Magno had taken place. In court counsel for the defendants advised that Marquez had been “missing in action” for personal reasons and could not have provided an affidavit at an earlier date. Counsel attempted to file the Marquez affidavit before me. Following submissions, I indicated that Marquez’s affidavit would not be admitted and inquired as to whether counsel for the defendants was seeking an adjournment of the motion to deal with the late served affidavits and the problems (set forth below) regarding the other defendant's affidavits. Counsel did not request an adjournment and the Marquez affidavit was not admitted. As a result the court had no affidavit evidence from Marquez. Any references to the Marquez affidavit in the defendants’ second factum provided after oral submissions are not admissible.
[29] The affidavits of Mercy Maligag (“Maligag”) and Joe Damasco (“Damasco”) are of no assistance to the court as they purport to support the defence of justification/truth. No evidence in support of that defence is admissible as particulars were not pleaded. Damasco’s affidavit also has a further time problem, because it was sworn on January 12, 2018 (again, well beyond the court‑ordered timeframe and after the cross examination of Cusipag). There is also an affidavit of Ignacio Mogado (“Mogado”) sworn October 18, 2017, on which I place little, if any weight, as it is based completely on inadmissible hearsay evidence. (In the affidavit, he relies on a conversation he had with another individual who told him that a deceased person’s name and others are included in the UPAA petition). In any event, there is no evidence in the Maligag, Damasco or Mogado affidavits of Magno committing any fraud with respect to the petition. Overall, the defense of this motion was ill-conceived. The defendants should have acted prudently and responsibly and offered an apology to Magno in order to avoid this motion. Rather they “stuck” their heads in the sand and offered considerable late and flawed evidence.
SUMMARY OF MATERIAL BEFORE COURT
[30] The materials before the court include the following:
(i) the pleadings;
(ii) two affidavits of Magno, one undated and one of November 28, 2017;
(iii) Cusipag discovery transcripts of September 16 and November 4, 2016;
(iv) Marquez written discovery answers sworn March 23, 2017;
(v) affidavits of Rosalinda Tijam (“Tijam”) affirmed November 23, 2017 and Olivia Camacho affirmed November 23, 2017 (both providing evidence of their relationship with Magno);
(vi) Cusipag affidavit sworn December 11, 2017;
(vii) Cusipag cross‑examination transcript sworn December 21, 2017;
(viii) affidavits of Maligag sworn September 1, 2017; Mogado sworn October 18, 2017 and Damasco sworn January 12, 2018;
(ix) affidavits of Tijam sworn August 2, 2017 and Clemente Cabillan (“Calliban”) sworn July 31, 2017.
[31] The affidavit of Marquez sworn January 12, 2018 was not admissible.
ISSUES
[32] The key issues for summary judgment are as follows:
Are the words complained of defamatory to Magno?
Are the defendants protected by the defence of justification/truth?
Are the defendants protected by the defence of qualified privilege?
Are the defendants protected by the defence of responsible communication?
Are the defendants protected by the defence of fair comment?
Were the defendants motivated by malice?
If Magno’s claim is successful, what damages are owed?
What other relief, if any, is appropriate?
[33] I will first summarize the applicable law before examining each issue in turn.
THE LAW
[34] In Leenen v. Canadian Broadcasting Corp., (2000) 2000 22380 (ON SC), 48 O.R. (3d) 656, (S.C.) (“Leenen”), the court provided an excellent summary of the law of defamation. The court defines defamation as follows at paras. 40 and 41:
A defamatory statement is one which has a tendency to injure the reputation of the person to whom it refers, a statement which tends to lower that person in the estimation of right-thinking members of society generally and, in particular, to cause the person to be regarded with feelings of hatred, contempt, ridicule, fear, dislike or disesteem. The very essence of a defamatory statement is its tendency to injure reputation, which is to say all aspects of a person's standing in the community.
To show defamation, the onus is on the plaintiff to prove three elements:
(a) that the words complained of were published;
(b) that the words complained of refer to the plaintiff; and
(c) that the words complained of, in their natural and ordinary meaning, or in some pleaded extended meaning, are defamatory of the plaintiff.
[35] In this case the defendants concede (a) and (b): the elements of publication and the reference to Magno. At issue (among other things) is (c).
[36] Once the above elements have been established, it is presumed that the words are false and that the plaintiff has suffered general damages: Peter A. Downard, Libel, (3rd ed.), (Markham, ON: LexisNexis Canada, 2014), at p. 3 (“Downard”). The onus then shifts to the defendants to advance and prove a defence in order to escape liability: Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640, at paras. 28-29.
ANALYSIS
1. Are the words complained of defamatory to the plaintiff?
[37] Are the words complained of, in their natural and ordinary meaning, or in some pleaded extended meaning, defamatory of Magno? A publication which tends to lower a person in the estimation of right-thinking members of his or her community, or to expose him or her to hatred, contempt or ridicule, is defamatory and will attract liability if no defence is available.
[38] Paragraph 11, above, sets out some of the words and descriptors used to describe Magno.
[39] The words in question describe Magno as a bully; a criminal who has made threats and committed blackmail; a habitual liar; a fraud; someone who “consorts with shady characters”; someone who has a false fronted marriage; and as someone who takes advantage of weak and vulnerable people. It is self‑evident that the reputation of someone who is described in this fashion will likely be lowered in the estimation of right‑thinking members of his or her community, and she or he will be exposed to hatred, contempt or ridicule. I therefore find that the defendants have published defamatory statements about Magno.
[40] Having found that Magno was defamed, the statements are presumed to be false, and Magno is presumed to have suffered damage: Grant at para. 28. The burden then shifts to the defendants to establish one or more of the common law defences on a balance of probabilities. In this case, the defence has raised the defences of (i) justification/truth; (ii) qualified privilege, (iii) responsible communication; and (iv) fair comment. I will deal with them in order.
2. Are the defendants protected by the defence of justification/truth?
[41] The defence of justification/truth is a complete defence. If the facts which comprise the defamatory material are true, a plaintiff's action cannot succeed: Brown at 10-1; Sutherland v. Slopes, [1925] A.C. 47 at p. 62.
[42] The defence of justification/truth requires the defendants to prove the truth of all the defamatory imputations contained in the expression complained of by Magno including defamatory inferential meanings.
[43] It makes no difference whether the defendants believed the truthfulness of what others had told them about the allegations or the truth of the impugned words: Brown at p. 10-12. The defendants must prove their truth.
[44] As set out above, however, there can be no defence of justification/truth, as the pleading is completely devoid of any particulars. No evidence of justification/truth can therefore be admitted, and this defence fails.
3. Are the defendants protected by the defence of qualified privilege?
[45] The defence of qualified privilege is described in Brown at p. 13-5 as follows:
There are certain occasions on which a person is entitled to publish untrue statements about another, where he or she will not be liable even though the publication is defamatory. One such occasion is called a conditional or qualified privilege. No action can be maintained against a defendant unless it is shown that he or she published the statement with actual or express malice. An occasion is privileged if a statement is fairly made by a person in the discharge of some public or private duty, or for the purpose of pursuing or protecting some private interest, provided it is made to a person who has some corresponding interest in receiving it. The duty may be either legal, social or moral. The test is whether persons of ordinary intelligence and moral principle, or the great majority of right-minded persons, would have considered it a duty to communicate the information to those to whom it was published.
[46] In Leenen, the court summarized the test as follows at para. 108:
To succeed in this defence the defendant must establish not only some public or private duty, but also that the recipient had a corresponding interest in receiving the information. The test is clearly an objective one.
[47] The defence of qualified privilege is typically not available to media defendants. As the Supreme Court of Canada commented in Grant at para. 34:
[T]he defence of qualified privilege has seldom assisted media organizations. One reason is that qualified privilege has traditionally been grounded in special relationships characterized by a “duty” to communicate the information and a reciprocal “interest” in receiving it. The press communicates information not to identified individuals with whom it has a personal relationship, but to the public at large.
[48] Ontario courts, however, have held that qualified privilege may attach to a communication by the media if it is published in the context of a “social or moral duty to raise the underlying issue: Leenen at para. 114; Grenier v. Southam Inc., [1997] O.J. No. 2193 (C.A.). This, however, has largely applied to political bodies and political figures: see Reynolds v. Times Newspapers Ltd., [2000] H.R.L.R. 134 (H.L., Eng.).
[49] The defence of qualified privilege is not available to these defendants because their posting of the articles containing the defamatory statements on the internet exceeds the privilege. There is authority holding that reciprocity of interest is required between the writer and reader, and publication to the world at large exceeds the privilege. In Jones v. Bennett, 1968 126 (SCC), [1969] S.C.R. 277 at pp. 284 and 285, the Supreme Court of Canada held that:
“a plead of qualified privilege … cannot be upheld where the words complained of are published to the public generally or, as it sometimes expressed, to the world.”
[50] This line of authority has been adopted in Rubin v. Ross, 2013 SKCA 21 para. 56 and in several cyber libel cases where the defence was dismissed. There is no dispute that the defamatory statements were published on Balita newspaper’s website, on Facebook, YouTube, Twitter and in an online forum, Fil-Am Forum.
Vigna v. Levant, 2010 ONSC 6308 para. 40-32
Warman v. Veck, 2015 ONSC 4860 para. 35
Walsh Energy Inc. v. Better Business Bureau of Ottawa-Hull Inc. 2016 ONSC 1606, Div. Court, para. 52-57
[51] The defendants did not provide any submissions on this point. Although the defence raised it as issue 3 on page 7 of their factum; they later provided their submissions on responsible communication as issue 3.
[52] The defence of qualified privilege fails on the application of the law.
4. Are the defendants protected by the defence of responsible communication?
[53] The defendants have submitted that their statements are protected by the defence of responsible communication, established by the Supreme Court of Canada in Grant. In order to make use of the defence, the publication must be (i) on a matter of public interest, and (ii) the defendant must show that the publication was responsible, in that he or she was diligent in trying to verify the allegation(s), having regard to all the relevant circumstances: Grant at para. 98. The defendants submit that both parts of the test were met. This defence does not succeed. The publications were not of public interest. They were not responsible and no allegations were verified in any way by the defendants.
[54] Some quotations from Torstar are helpful with respect to this issue:
(i) Para. 102: “The public’s appetite for information on a given subject – say, the private lives of well-known people – is not on its own sufficient to render an essentially private matter public for the purposes of defamation law. An individual’s reasonable expectation of privacy must be respected in this determination.” Magno’s expectation of privacy was not respected. These were personal attacks.
(ii) The test for whether the communication was “responsible” (paras. 88-126), is to be determined by considering:
(a) the seriousness of the allegations (these allegations were very serious);
(b) the public importance of the matter (there was no public importance);
(c) the urgency of the matter (these were not urgent matters);
(d) the status and reliability of the source (there was no reliability);
(e) whether the plaintiff’s side of the story was sought and accurately reported (nothing was sought by the defendants to verify any information);
(f) whether inclusion of the defamatory statement was justifiable (nothing was justifiable);
(g) whether the defamatory statement’s public interest lay in the fact that it was made rather than its truth (there was no public interest in the making of the statements); and
(h) Other considerations (none).
(iii) Paras. 116-117:
In most cases, it is inherently unfair to publish defamatory allegations of fact without giving the target an opportunity to respond: see, e.g. Galloway v. Telegraph Group Ltd., [2004] EWHC 2786 (Eng. Q.B.), at paras. 166-67. Failure to do so heightens the risk of inaccuracy, since the target of the allegations may well be able to offer relevant information beyond a bare denial (Magno was given no opportunity to respond).
[55] I agree that the defendants cannot avail themselves of this defence for the simple reason that they were not diligent in trying to verify their injurious allegations as required by the defence. Marquez ignored Magno’s clarifications and made no real efforts to investigate the conflicting claims. By her own admissions, Cusipag did not exercise editorial control over Marquez’s articles to temper the tone or the language used or to present a fair and balanced story despite her awareness of: (a) Magno’s explanations, assurances and conciliatory messages; (b) Magno’s clarifications, and (c) Marquez’s animosity towards Magno. More importantly, the defendants did not provide Magno with an opportunity to respond to specific potentially injurious allegations they intended to publish before actual publication.
[56] The defence of responsible communication fails, in any event, because the defendants were actuated by express malice (dealt with below). In Grant, the court noted at para. 125:
“[a] defendant who has acted with malice in publishing defamatory allegations has by definition not acted responsibly.”
5. Are the defendants protected by the defence of fair comment?
[57] Comments that are made honestly and in good faith about facts which are true on a matter of public interest are not defamatory: Brown at 15-2. This is known as the “fair comment” defence.
[58] In Enverga at para. 35, the court stated:
With respect to the defence of fair comment, the defendants are in a similar position as they are with respect to the defence of justification. Fair comment defence depends on provable facts. Although everyone is entitled to comment fairly on matters of public interest, such comments are protected by a qualified privilege if they are found to be comments and not statements of fact, and are made honestly, and in good faith, about facts which are true on a matter of public interest.
[59] The defendants have failed to set out any facts upon which their comments were made and, as indicated above there was no justification/truth established with respect to the allegations levelled against Magno. For this reason alone the defence of fair comment fails even without the necessity of a demonstration that the defendants acted unfairly and without good faith in making the defamatory statements.
6. Were the defendants motivated by malice?
[60] I now turn to the issue of malice. Malice defeats the defences of qualified privilege and fair comment: Downard 166 and 249. I feel it is necessary to review this issue even though I have found that none of the defences apply. In the event that I am wrong in any of my conclusions with respect to the defences available, it becomes important to determine whether there was a malicious component to these publications. Malice is also relevant to the issue of damages.
[61] The court in Leenen stated the following regarding the definition of and evidence required for malice at paras. 140-143:
Malice is commonly understood as spite or ill will towards someone. However, it also includes any indirect motive or ulterior purpose other than the sense of duty or the mutual interest which the privileged occasion created: Hill v. Church of Scientology of Toronto, supra; Botiuk v. Toronto Free Press Publications Ltd., supra; and Vogel v. C.B.C., supra. The fact that the defendant has a positive belief in what he or she is publishing on a privileged occasion is not sufficient to demonstrate the absence of express malice if it is shown that the privilege is being used for some indirect or improper purpose.
Malice may also be established by showing that the defendant either knew that he was not telling the truth or was reckless in that regard.
Evidence of malice may be intrinsic or extrinsic and malice may be inferred from the language used in the defamatory statements. Extrinsic evidence consists of evidence apart from the statements themselves from which the trier of fact can infer some improper motive and a court will look at the conduct of the defendant throughout the course of events both before and after the defamatory publication.
[62] I have reviewed and accept the summary of the evidence (including the footnotes confirming the source of the evidence) provided by Magno in Section C (42) of his factum. I accept that there is substantial evidence of Cusipag’s express malice. This malice is manifested in her writings; conduct; affidavit; discovery; and cross‑examination, which establish that the vilification campaign she waged against Magno, with Marquez’s help, was driven by spite, ill‑will, revenge and other improper motives. I note that:
(a) Cusipag had animosity towards the Senator Enverga and his wife, which extended to persons she perceived to be their supporters, including Magno, and set out to vilify Magno after coming across his letter to then PM Stephen Harper, vouching for Enverga’s fitness for office (I again note that Cusipag Senator Enverga’s wife ran competing Filipino beauty pageants and that Cusipag has made defamatory comments about the Senator’s wife);
(b) Cusipag felt disrespected by Magno and she used her paper to publicly denigrate Magno to satisfy her private spite;
(c) Cusipag was angered by the dissemination of a critical news video about Marquez, which was originally broadcast by ABC Channel 10 News, and as a result she acted in concert with Marquez to punish those who shared the news video, including Magno. (ABC Channel 10 News is a San Diego based mainstream news organization and its report and televised video of Marquez is in the public domain. All the allegations contained in the report and video are true and are substantiated by court records);
(d) Cusipag was angered by the PPCO petition that she and Marquez suspected Magno of initiating, and she responded by publishing articles aimed at discrediting Magno personally; and
(e) Cusipag deliberately pursued “yellow journalism” practices to increase her paper’s readership and revenue.
[63] I accept that the following conduct on the part of Cusipag provides additional compelling proof of her express malice: I have reviewed and accept the summary of evidence (including the footnotes confirming the source of the evidence) provided by Magno in Section C (43) of his factum:
(a) Cusipag instantly disseminated the articles containing the defamatory statements by email within minutes of receipt from Marquez. She did not check the authenticity of Marquez’s articles;
(b) Cusipag disseminated the defamatory articles to friends of Magno and influential persons including church ministers, political leaders (e.g. the Honourable Tim Hudak), and the Philippine embassy and consulate;
(c) Cusipag forwarded articles about Magno to Magno’s wife soon after Marquez released them, and thereby increased Magno’s apprehension, stress and anxiety;
(d) Cusipag sent an email to Magno with the message “OK gasbag, everyone is laughing at you. Shame shame shame”. This shows that the articles were calculated to subject Magno to public contempt and ridicule;
(e) Cusipag announced some defamatory articles via email as her paper’s next headline, and copied or blind‑copied Magno and his wife on her pre‑publication emails, which manifested her intent to instill anxiety, fear and distress;
(f) before publication of the maliciously contrived YouTube “news‑video” about Magno, Cusipag, exhorted Marquez in an email to continue the attacks on Magno, stating “LET’s FIGHT LIKE HELL”. She also exhorted two of her writers to join in the attacks against Magno and to broaden the attacks to include Magno’s wife. She copied Magno and his wife on two of these emails;
(g) after publication of the malicious YouTube “news‑video” about Magno, Cusipag forwarded derogatory comments from persons outside Canada who had seen the video to Magno and his wife, clearly intending to aggravate Magno’s humiliation and heighten his mental distress; and
(h) Cusipag knowingly published the falsehood that Magno wanted the PPCO to sanction her for reporting unflattering stories about Magno. However, none of the articles mentioned in the PPCO petition made reference to Magno.
[64] I accept that there is also substantial and compelling evidence of Marquez’s express malice. Again I have reviewed and accept the footnoted evidence set out in paragraph 44 of Magno’s factum. Marquez’s writings, admissions and conduct together establish that the vilification campaign he waged against Magno, with Cusipag’s support, was driven by revenge, spite and ill‑will. The evidence in this regard includes the following writings by Marquez:
(i) Magno came to my knowledge in mid‑March when he posted a forwarded message on the University of Philippines Alumni Association Toronto (UPPAA Toronto) group site from his puppeteer, the bankrupt San Francisco lawyer Rodel (alias Rodil) Rodis.
(ii) Currently Rodis has a bootlicker in Toronto who obediently does all his bidding. He was among the protesters at the Chinese consulate. One of the reasons I covered this protest was to know him, see how he looks, how he behaves. And I was not surprised to hear him mouth the same sound bites that Rodis dishes out.
(iii) Magno had earlier posted the discredited video against me in his group… an apology from offenders like this gasbag would sound like a farce, so I’ll fight it out to provide that I`m the one at the receiving end of the abuse.
(iv) Melinda Rustia had made fun of me and circulated a 2005 news video by a Caucasian reporter – the same video endorsed by the bully Oswald Magno to his friends at UPAA – which I`ve vehemently denied from the moment it came out.
(v) I remember Melinda Rustia who in March 2011 tried to push me around… When I wrote about her and put it in a video, she complained, demanded an apology and threatened a lawsuit… ‘The same is true with an Oswald Magno… Almost two years ago (that’s March 2010), he tried to impress his friends at the University of the Philippines Alumni Association… he passed on to them a video link to a 2005 story in San Diego, (California… involving me and a girlfriend... I didn’t mind Magno for many months despite what he did’. He had thought, wrongly, that he could get away with it.
[65] Malice is clearly made out on the evidence.
7. What are the appropriate damages?
[66] Magno seeks damages as follows:
(a) general/aggravated damages in the amount of $450,000 to $600,000; and
(b) punitive damages in the amount of $110,000.
[67] The defendants submit that the following are the appropriate amount of damages if Magno succeeds on this motion:
(a) general damages (with no increase for aggravated damages) in the amount of $50,000; and
(b) punitive damages in the amount of $25,000.
[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 59 (SCC), [1995] 2 SCR 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 3651 at para. 21; St. Lewis v. Rancourt 2015 ONCA 513 at paras. 13-16.
[69] In Hill v. Church of Scientology, 1995 59 (SCC), [1995] 2 S.C.R. 1130, at para. 190, the Supreme Court of Canada made the following comments on the assessment of damages in defamation cases:
The assessment of damages in a libel case flows from the particular confluence of the following elements: 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 statement upon the life of the plaintiff, and the actions and motivation of the defendants. It follows that there is little to be gained from a detailed comparison of libel awards.
[70] In Enverga the court awarded $150,000 in general/aggravated damages and $100,000 in punitive damages. That case involved only one article. This matter involves the same tightly knit ethnic community as with Senator Enverga. In this case the defendants have carried out an all-out cyber attack on Magno. There was no apology or retraction. These articles were “published” over a 14 month period, at times on multiple platforms. The defendants’ motive and conduct, assisted by their counsel, have aggravated the damages. Pleading the defence of justification/truth without clear and sufficient evidence of the truth of the imputation has consequences. An unsuccessful plea of justification/truth may be taken into account in aggravating Magno’s damages. The defendants in this case exhibited malicious, high‑handed and oppressive conduct which provides the foundation to award aggravated damages.
[71] Aside from not pushing the case to trial, the defendants did everything in their power to inflict pain on Magno and to aggravate damages:
(a) they refused to retract the defamatory statements and to apologize;
(b) they pursued a defence of truth/justification when no particulars were pleaded;
(c) they attempted to introduce the affidavit of Marquez on the day of the hearing, which was not only materially late (they had at least 5 months to submit it), but also replete with hearsay, improper opinion evidence and further malicious slurs;
(d) they incorporated further information from Marquez (which was not admitted) in their factum and in their other written submissions;
(e) with regard to the responsible communication defence, they claim that Magno's own conduct absolved them of their obligation to obtain and present his side of the story;
(f) they submit that “the impugned words about Magno were reported in response to his conduct”. They submit that Magno is the “author of his own misfortune”. They are essentially claiming that Magno somehow deserved to be publicly and widely denigrated for forwarding a news article about Marquez; for writing to then-PM Harper to thank him for appointing a Filipino-Canadian to the Senate; and for joining other members in his community for petitioning the PCPO to examine disturbing articles published by Balita.
[72] Paragraph 65 of Magno’s factum sets out the evidence regarding the damages caused to Magno. It also provides the source of the evidence (mainly coming from Magno’s two affidavits). Magno’s pain and suffering are palpable from his affidavits. Affidavit evidence was also provided from Tijam and Camacho who set out their observations of Magno following the publication of the defamatory articles.
[73] I was provided with many cases regarding quantum of general/aggravated damages. As set out in Hill v. Church because of those multiple factors in assessing damages “there is little to be gained from a detailed comparison of libel awards”. I have however been guided by the damage awards in Leenen in which the court in 2000 awarded $400,000 in general damages, $350,000 in aggravated damages and $200,000 in punitive damages. None of the defences in that case raised were successful and malice/bad faith were found. The ability of the CBC to disseminate the materials was profound. The subject program was found to strike at the very core of Leenen in questioning regarding his scientific credibility, integrity and communication. It was significant that the offender was the CBC and not a tabloid on which it was found very few would pay very much attention. Balita is much like a tabloid however it is prominent in the Filipino community and the offending articles were disseminated in so many forums. This was an all out cyber attack on Magno. It was not disseminated to as sophisticated an audience but still an audience of similarly minded Filipino individuals.
[74] I am further guided by the damage award in Nazerali v. Michell, 2016 BCSC 810 in which the plaintiff was awarded $400,000 in general damages, $500,000 in aggravated damages and $250,000 in punitive damages. The facts are more scandalous than in this case. The defences failed and malice was found. I cite this case not because the facts are significantly similar but rather to indicate that courts are awarding significant damages in defamation cases. The cases provided by the defendants have been provided to indicate that certain courts are awarding significantly lower numbers. I place no reliance on those cases.
[75] Punitive damages are appropriate to punish the defendants and deter others. Magno in his factum at paragraph 68 sets out the following (again I have reviewed and rely upon that evidence and the footnoted evidence).
(a) the defendants continued to publish additional defamatory articles about Magno including the maliciously contrived YouTube “news‑video”, which they republished eight times, after being served with a notice of intended action, a statement of claim and amended statement of claim. They published 15 articles containing statements defamatory of Magno, after service of the first notice of intended action. As late as March 13, 2017, long after the pleadings closed, the defendants disseminated via email, published in Balita’s print and online editions, and posted on Facebook and Fil-Am Forum, an article containing an unsubstantiated accusation against Magno, in which they also re‑published the malicious YouTube “news-video” about him;
(b) the defendants, particularly Cusipag, have demonstrated disrespect for the legal system and even court orders. On March 13, 2017, in the Enverga matter Cusipag was found in criminal contempt of court for several post‑judgment emails, including an email disseminating an article written by Marquez and online comments she had made in August, October and December of 2016 which were found to be in violation of the permanent injunction issued in July 2016 in the libel case against her;
(c) Cusipag is on record as saying that she “loves lawsuits” and treats them as an “investment”. This is one more reason punitive damages are required in this case. The defendant by her own words considers general damages to a mere license fee for publishing baseless and sensational stories calculated to boost her paper’s circulation, popularity and ability to generate more revenue and profit.
[76] I accept Magno’s counsel’s submission that $110,000 is the appropriate award for punitive damages. I award $300,000 in general/aggravated damages.
8. What other relief, if any, is appropriate?
[77] There is no reason to believe that the defendants will behave any differently than they did with Senator Enverga. As set out above, Cusipag was found to be in contempt of the injunction, did nothing to purge her contempt of the injunction and was jailed. I have a concern that the defendants will also be undeterred in this case and will continue to publish defamatory statements about Magno.
[78] The defendants have engaged in a persistent campaign to injure Magno; have ruined his reputation; and have done so with malice. They have refused to apologize and have given no indication that they are prepared to stop their irresponsible defamatory attacks. Their counsel participated in these attacks. In these circumstances (as was in Enverga) a permanent injunction will issue enjoining the defendants directly or indirectly from publishing in any form or encouraging or assisting others to publish any statements in any manner whatsoever. In their notice of motion, Magno suggested very specific wording regarding the injunction. As I am uncertain if that continues to be the requested wording I am prepared to receive very specific wording suggestions regarding the injunction from Magno’s counsel within 14 days and from defence counsel within 7 days thereafter.
COSTS
[79] As I anticipate that there will be no agreement as to costs, brief written submissions can be emailed by Magno within 20 days and any response from the defendants within 10 days thereafter to my assistant at lorie.waltenbury@ontario.ca.
J.E. Ferguson J.
Date: May 23, 2018
COURT FILE NO.: CV-13-486945
DATE: 20180523
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Oswald P. Magno
Plaintiff
– and –
Balita Media Inc. (Owner/Operator of Balita Newspaper), Teresita Cusipag (In Her Capacity as Editor/Publisher of Balita Newspaper), Teresita Cusipag (In Her Personal Capacity), and Romeo P. Marquez
Defendants
REASONS FOR JUDGMENT
J. E. Ferguson J.
Released: May 23, 2018