Court File and Parties

COURT FILE NO.: CV-15-519907

DATE: 20180529

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Sajjad Asghar, Plaintiff

and

Joallore Alon, Defendant (Appellant)

BEFORE: Schreck J.

COUNSEL: S. Asghar, on his own behalf

I. MacKinnon, for the Defendant

HEARD: May 28, 2018.

ENDORSEMENT

[1] On January 17, 2013, the plaintiff attended a social event that had been organized by the defendant. The two men did not know each other before. At the event, there was a prize awarded to the first guest who could produce a condom. The plaintiff won the prize. As he was collecting it, a photograph was taken of him holding a condom.

[2] A few days after the event, the defendant posted the photograph of the plaintiff holding a condom on his Twitter account together with a message that read “If you see this guy at your Toronto/GTA event. Beware ladies! Uses fake email/twitter to register FYI.” In response to inquiries from other Twitter users for further details, he posted further messages which stated: “He was very uncomfortable to many of the females at my event recently. I feel I need to call him out” and “He is someone that made a lot of females uncomfortable at a recent and prior events. He will proposition you.”

[3] In January 2015, just under two years after the Twitter posts, the plaintiff sued the defendant for defamation. The defendant has brought a motion for summary judgment, pursuant to Rule 20.04 of the Rules of Civil Procedure. While he accepts that the Twitter posts were capable of being found to be defamatory, he takes the position that they were true, or, in the alternative, that they were subject to a qualified privilege.

[4] The approach the court must take on a motion for summary judgment was set out in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87. The summary judgment rule should be interpreted broadly, favouring proportionality and fair access to affordable, timely and just adjudication of claims. The court must determine whether there is a genuine issue requiring a trial based only on the evidence presented. If there is no genuine issue, then the motion shall be granted. Where there is a genuine issue, the motion judge should consider whether the need for a trial can be avoided by ordering the presentation of oral evidence under Rule 20.04(2.2) or relying on the fact finding powers in Rule 20.04(2.1), namely:

1.Weighing the evidence;

2.Evaluating the credibility of a deponent; and

3.Drawing any reasonable inference from the evidence.

These powers can only be exercised where doing so would not be against the interest of justice, that is, where “they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole”: Hryniak, at para. 66.

[5] In support of the motion, the defendant filed affidavits sworn by himself and two guests who attended the event in question. In his affidavit, the defendant stated that the plaintiff had “appeared aggressive when approaching women and followed certain women around the Event.” One of the other guests deposed to having witnessed similar behaviour on the part of the plaintiff. Another guest stated in her affidavit that the plaintiff had “snuck up and tried to hug me from behind.” The affiants also reported having received complaints about the plaintiff from other guests at the event.

[6] The plaintiff swore an affidavit in response. He denied having behaved inappropriately with any of the defendant’s guests, whom he refers to in his affidavit as “skanks”. At one point in his affidavit, he stated:

This damage and defamation cannot be wiped with the ass of a woman since this is much pricier than the fake asses of [several women who attended the event, including the two who swore affidavits]. These women are cheap and third class and their conspiracy to frame the plaintiff has been busted. All these women are mature, butt ugly and they do not qualify for an approach in this plaintiff’s world.

[7] In another portion of his affidavit, the plaintiff states that one of the women who had made allegations against him (but who did not swear an affidavit on this motion) was somehow affiliated with a man who had threatened him in the name of the “United States mafia”. He stated that he had reported this threat to the Premier. Attached to the affidavit is a letter addressed to the “Government of Ontario” and apparently written by the plaintiff. Large parts of the letter have been redacted with a black marker. The unredacted portions appear to be a request that some sort of investigation be initiated into an “organized crime gang who work inside the Government and Civil departments”. The letter mentions a threat made to the plaintiff at an event other than the event organized by the defendant.

[8] The first step set out in Hryniak is to determine whether there is a genuine issue requiring a trial based only on the evidence presented. There clearly is since there are conflicting versions of events.

[9] The next step is to consider whether the need for a trial can be avoided by relying on the fact finding powers in Rule 20.04(2.1), which permit the court to weigh the evidence and evaluate the credibility of deponents. Courts must be cautious about assessing credibility based on a paper record. As was recently noted in Baywood Homes Partnership v. Haditaghi, 2014 ONCA, 120 O.R. (3d) 438, at para. 44:

Great care must be taken by the motion judge to ensure that decontextualized affidavit and transcript evidence does not become the means by which substantive unfairness enters, in a way that would not likely occur in a full trial where the trial judge sees and hears it all.

This is especially so where, as here, there has been no cross-examination on any of the affidavits. Ultimately, however, the issue is whether the procedure is fair in that it gives the court confidence that it can find the necessary facts and apply the relevant legal principles so as to resolve the dispute: Hryniak, at para. 50.

[10] In this case, I am confident that I am able to find the necessary facts to resolve the dispute and find that the defendant has established that the statements he made on Twitter were true. I draw this conclusion for several reasons. First, the defendant’s version of events is corroborated by the other two affidavits. Second, it is undisputed that the plaintiff and defendant were unknown to each other prior to the event, so the defendant had no motive to post these things about the plaintiff unless they were true. Third, if the defendant was motivated by malice as the plaintiff contents, he likely would have made far worse allegations than he did. Fourth, the plaintiff’s language in his affidavit, where he refers to women as “skanks” and “butt ugly”, suggests an attitude towards women that is confirmatory of the allegations of inappropriate behaviour towards them. Finally, the fact that the plaintiff’s denials are mixed together with bizarre allegations about organized crime in the government is further reason to doubt the veracity of his claims. In these circumstances, I conclude that the record on this motion is such that I am able to find, with confidence, that the defendant has established the defence of truth on a balance of probabilities.

[11] For these reasons, the motion for summary judgment is granted and the action is dismissed.

[12] The defendant is entitled to his costs on a partial indemnity basis. I have reviewed the defendant’s costs outline. Some of the work mentioned on it relates to a previous motion brought by the defendant to strike the claim. An order as to costs was made by the judge hearing that motion and the defendant is not entitled to recover those costs a second time. It is unclear from the costs outline what proportion of the costs being claimed relate to the earlier motion. As well, I am of the view that the time spent overall is somewhat more than was necessary. In all the circumstances, I award costs to the defendant in the amount of $18,000.00, inclusive of taxes and disbursements.

Schreck J.

Date: May 29, 2018