Court File and Parties

Court File No.: CV-15-3516-00 Date: 2018 08 13

Ontario Superior Court of Justice

Between:

ADHIN SUKHU, Plaintifff Adrian Nicolini, counsel for the Plaintiff

- and -

AMRITA RAMAUTAR and PADMAWATTIE RAJKUMAR, Defendants No one appearing

Heard: March 7, 2018

Reasons for Judgment

D.E HARRIS J.

[1] Adhin Sukhu (“Chris” as he is known in his family) says he was defamed by a document written by his sisters-in-law, the defendants. The almost three-page single spaced document alleged in a very brief passage that he had called one of the defendants on the telephone and made the preposterous suggestion that if she would perform oral sex upon him, he would give her his house. As a consequence of this comment, Chris claims to have been severely depressed and unable to work for a lengthy period.

[2] The defendants were asked to retract and apologize for what they wrote in the document. They did what was asked of them. But Chris was not satisfied. They were asked to sign and did sign a more formal retraction document drafted by Chris’ lawyer. But it is said that they failed to distribute the document as they had agreed to do. Shortly afterwards, a statement of claim was filed against them in the summer of 2015.

[3] The statement of claim requested total damages of $700,000 plus pre and post-judgment interest and costs. At trial, the damages requested were reduced to $125,000.

Background

[4] Chris was summarized by his lawyer as “a married family man, an instructor at Durham College and a real estate agent.” Chris just turned 70 years old. He was born in Guyana and, after a stint in the United States, emigrated to Canada in 1972. He matriculated that year at Ryerson Polytechnical Institute and the next year received a diploma in business administration.

[5] The same year, he married his wife. They have two daughters and one son. There are four grandchildren. Chris worked at Centennial College for several years, initially as a technical support analyst, eventually becoming a professor in the computer department. He has been a professor at Durham College since 2014. In that same year he obtained his real estate licence.

[6] The defendants are his wife’s sister, Amitra Ramautar, who is in her 50’s, and his wife’s brother’s wife, Padwattie Rajkumar, who is in her 40’s and known as “Lali.” The defendants were noted in default and this trial was undefended. The plaintiff was the only witness. He was represented by counsel.

[7] As explained in his evidence, Lali contacted Chris in 2015 to sell her house. She wanted to sell it for $550,000 and expressed the desire to buy another house, twice the size, for $500,000. Chris told her this was impossible and referred her to another real estate agent. According to Chris, his relationships with both Lali and Amitra, were very good although they did not see each other that often, perhaps only twice a year.

[8] Shortly after this conversation, Chris’ father-in-law, his wife’s father, passed away. Chris felt that the deceased’s house in Guyana should be kept in the family as a legacy and something to remember him by. Chris testified that he was a person that the family would listen to and count on. However, his wife’s immediate family, including the defendants, on this occasion were not interested in his plan.

[9] It seems that it was a result of this family disagreement, which was not fully explored in this undefended trial, that the allegedly defamatory document (the “document”) was written. It was written by Amitra on behalf of both defendants. Lali is illiterate. It was left at their mother’s home after the death of her husband.

The “Document”

[10] The impugned part of the document as quoted in the statement of claim at paragraph 7 stated that Chris had called one night at 10:30 and said to Lali, after disguising his voice,

“Hi Lali, if you suck my CO--, I will give you my house” then the person hung up the phone. (You can guess what the other two letters are as it is too disgusting for us to write in full). (emphasis ours)

[11] The statement of claim also quoted this part of the document,

Christopher tends to behave inappropriately and make inappropriate jokes with us even when the kids or Mom and Dad can hear. Of course we’ve never said anything. Marsha had to leave early the day to she was visiting Mom because Chris was being rude and trying to touch her. (emphasis ours)

(Emphasis in original)

[12] According to his affidavit filed on the motion for default judgment and in his testimony, Chris tried on numerous occasions to discuss the allegations in the document with the defendants. The defendants were very hostile, made further allegations, and “refused to allow me to express my version of the facts surrounding the issues in the Publication.”

[13] Chris hired lawyer Ted Evangelidis who wrote a letter to the defendants in June of 2015. The letter quoted from the portions of the document set out above and then said, “The sting … is that [the plaintiff] is a sex-crazed pervert who engages in sexually abusive and assaultive conduct .” This was essentially the position at trial as well. The letter went on to say that the document was,

… malicious and was deliberately intended to defame and discredit [the plaintiff] and to hold him up to public scandal, ridicule and contempt. [It] has had predictable and devastating consequences for the [plaintiff], both in his business and personal reputation with family, friends, and right-thinking Canadians. The document would have an everlasting effect on the plaintiff’s relationship with his wife and extended family.

[14] The lawyer’s letter demanded a published apology and retraction within 7 days otherwise a claim would be issued. In response, an email was written by the defendants in which they retracted their statements and apologized for the defamation of character and any pain that might have been caused. The email added that only family members were aware of the document. The email ended by saying that the apology would go to all the same family members as the original document did.

[15] Mr. Evangelidis wrote back. The “apology” was insufficient. No reasons were specified. A formal retraction form had been prepared which required in its last paragraph that it be circulated as the original document had been. The defendants signed the document. Amitra emailed the lawyer to say that she would leave the document at her Mom’s place where the original document had been left. But the plaintiff alleged in his evidence that the defendants failed to circulate the retraction as they agreed to do. A statement of claim was served and filed several days after, in late July 2015. The defendants were noted in default in late August.

[16] In his affidavit, the plaintiff stated that after signing the retraction, the defendants continued to tarnish his reputation and create problems in his marriage. Recently they had attempted to convince the plaintiff’s wife Nal that the only purpose of the law suit was to obtain their mother-in-law’s money. The document had caused major problems in the plaintiff’s marriage and led to breakdowns in his relationships with many friends and family members. It had caused him stress .

[17] In his evidence at the trial, the plaintiff teared up and sobbed when discussing the effects on him. He said that because of the purported defamation he became a “shut-in” and could not work for two semesters in the 2015-2016 year. His career had been affected although he agreed in his evidence that there was no indication that anyone associated with his workplace had seen or heard about the document. He said his “ego was cut down to the ground” and it felt like he had been kicked in the gut. His chest contracted and he developed knots in his stomach. His emotional state was tremendously affected and he became stressed and depressed. He had 5 sessions with a psychologist.

Analysis

[18] The defendants are in default and by reason of Rule 19.02(1) (a) of the Rules of Civil Procedure R.R.O. 1990, Reg. 194, are “deemed to admit the truth of all allegations of fact made in the statement of claim.”

[19] The statement of claim alleges that the defendants prepared the document and that the document was untrue and false. Therefore, I must take it as a given that the defendants were responsible for the document and that the portions reproduced above at paragraphs 10 and 11 were false.

[20] There are three remaining issues to be resolved: 1. Was the document defamatory?; 2. Was it published in the sense of being communicated to at least one person other than the plaintiff?; and 3. What are the damages?: Grant v. Torstar 2009 SCC 61 at paragraph 28.

The Law of Defamation

[21] The question, one either of mixed fact and law or of law alone, is whether the document was defamatory in the sense that it would “tend to lower the person’s reputation in the eyes of a reasonable person”: Grant v. Torstar at para. 28; Botiuk v. Toronto Free Press Publications Ltd. (1995) , 126 D.L.R. (4th) 609 [1995] 3 S.C.R. 3 (S.C.C.) at paras. 69 , 92; Cherneskey v. Armadale Publishers Ltd. , [1979] 1 S.C.R. 1067 (S.C.C.) at 1079; Weaver v. Corcoran , 2017 BCCA 160 at paras. 68-73. There are two components to this issue: 1. Are the words capable of being defamatory? and, 2. Are the words in fact defamatory?: Lawson v. Baines , 2012 BCCA 117 (B.C. C.A.) at paras. 11-12. In this case, these two issues can be dealt with together.

[22] Defamation can be based on the literal, contextual or inferential meaning of the words in question. The British Columbia Superior Court said recently,

68 The words used must be assessed, in context, from the perspective of a reasonable, right-thinking person, “that is, a person who is reasonably thoughtful and informed, rather than someone with an overly fragile sensibility”: Weaver at para. 69.

Hee Creations Group Ltd. v. Chow 2018 CarswellBC 416 , 2018 BCSC 260 at paras. 67-68.

Were the Statements at Issue Defamatory?

[23] The defendants falsely accused the plaintiff of calling one of them on the telephone and proposing she commit a sexual act upon him in return for his house. There was also the factual allegation that he told “inappropriate jokes” in the company of children and their parents. Lastly, it was falsely stated by the defendants that a friend had been treated rudely by the plaintiff and that he tried to touch her. She left as a result.

[24] In answer to a question from his lawyer about what parts of the document troubled him, Chris made no reference to this last part involving the family friend.

[25] With respect to the allegation of telling inappropriate jokes, clearly there is nothing defamatory in this. The real issue on this trial is whether a false statement with respect to the sexual act proposition had the consequence of lowering the plaintiff’s reputation in the eyes of a reasonable, thoughtful person, not with an overly fragile sensibility and informed of the full context in which the statements were made.

[26] First of all, no reasonable person would take the sexual remark at face value. No one would see it as a true proposal for an act of prostitution. The consideration suggested was totally outrageous and made it abundantly clear that it was not intended as a first offer in a sexual services negotiation. There was no evidence before the court or in the statement of claim that anyone actually gave this remark any credence whatsoever.

[27] Context is critical: Dinyer-Fraser v. Laurentian Bank of Canada 2005 BCSC 225 at paras. 157-158. As the document and the other evidence attests, there was an ongoing family dispute only vaguely painted in evidence. The father-in-law had died and there was disagreement what to do with his house in Guyana. Further insight into the situation is afforded by the plaintiff’s affidavit where he attests that he tried to discuss the document with his sisters-in-law, the defendants, but that they refused to listen to his version of the facts with respect to it. The plaintiff said that the defendants after the retraction continued to tarnish his reputation and had caused major problems in his marriage, family and relationships with his friends. They had alleged that the law suit was to obtain their mother-in-law’s money.

[28] An element of the pertinent context is that the impugned passages are a very short passage contained in a three-page single spaced document. The subject matter of this litigation is buried in only a few lines of the document. Furthermore, the full document resembles a diary entry in both tone and content. It gripes about family matters in a conversational, mildly irritated voice. It is a personal writing. In examining whether a reasonable person would see the impugned passages as lowering the reputation of the plaintiff, this context tends to neutralize any injurious effect.

[29] A reasonable informed observer would take all these circumstances into account. An observer would conclude that the plaintiff made a rude and idiotic sexual remark. No reasonable person would believe that the plaintiff was actually suggesting a transaction of prostitution as counsel appears to contend.

[30] A reasonable person, with a reasonable sensibility and not overly fragile, looking at the issue with their common sense, would not see the document in the light the plaintiff apparently did. Nor would they have had the extreme reaction he supposedly did.

[31] In the end, I disagree with the plaintiff’s lawyer when he characterized the document as portraying the plaintiff as “a sex-crazed pervert who engages in sexually abusive and assaultive conduct.” This was not a reasonable interpretation, either on the face of the words used or inferentially in the full context. Rather, in my view, a reasonable person would shrug the remarks off and not see them as lowering the plaintiff’s actual reputation. The plaintiff’s reputation was not damaged by such a ridiculous imputation.

[32] Of course, any reasonable person would be offended by being accused of making this inane, sexual phone call to their sister-in-law. However, I do not believe in all the circumstances, that there would be real damage to reputation. Slights—albeit not generally of this variety—are common in family relationships and do not necessarily have the effect of lowering reputation.

[33] Counsel made analogy to Vanderkooy v. Vanderkooy 2013 ONSC 4796. In that case, the plaintiff was accused by the defendants of having sexually abused his nieces. The trial judge found that the accusations of abuse were false and defamatory. She awarded damages of $125,000. Counsel relies on the case with respect to both liability and damages, asking for the same quantum in this cause of action. This inapt analogy, if anything, highlights the lack of substance in the claim before the court. The allegation in this case bore no resemblance to the allegation of sexual abuse in Vanderkooy. It was not an allegation of very serious, morally reprehensible criminal conduct as was at issue in Vanderkooy. It was not criminal at all.

[34] I find that the plaintiff has failed to make out defamation.

Were the Statements Published?

[35] Given my conclusion with respect to the failure to prove defamation, it may not be strictly necessary to look at the issue of publication. But I have doubts with respect to this element and will comment on it.

[36] The statement of claim failed to cite direct evidence that the document was published or read by anyone. Nor is there an inference that can be drawn from the other averments in the statement of claim. Therefore, the plaintiff cannot benefit from the deeming provision in Section 19.02 of the Rules .

[37] On the issue at trial, the plaintiff testified that he heard from his wife that the defendants had left the document in the kitchen of their mother’s house after the father-in-laws death. In other words, the evidence of publication was built exclusively on an inadmissible hearsay foundation. This is of particular concern in an undefended case where there is no opposing counsel and no cross-examination.

[38] Furthermore, in so far as there may be admissible evidence intermixed with the hearsay on the question of publication, I admit to having significant difficulties with the plaintiff’s credibility at large and on this issue in particular. The plaintiff’s reaction to the entire situation was wildly out of proportion to the purported insult.

[39] Perhaps this reaction arose from the maelstrom of family issues hinted at in this proceeding. Or perhaps it was the plaintiff’s hypersensitive pride. But it could not legitimately have arisen out of the inane false comment wrongly attributed to the plaintiff. In my view, these effects were grossly inflated in relation to any real or imagined offence. They were so far beyond how an ordinary reasonable person would react as to strain credulity. Either it was feigned or the plaintiff allowed himself to become weighed down by self-pity. The latter is more likely, in my opinion.

[40] Another example of how this matter was overblown can be seen in the way the retraction was handled. As previously mentioned, the defendants wrote a retraction which seemed to cover all the bases but nonetheless did not meet with the plaintiff’s satisfaction. When they then agreed to and did sign a formal retraction drawn up by the lawyer, fault was found with this as well. The plaintiff testified that he had heard that this retraction was not distributed as the defendants were obligated to do. This, incidentally, was inadmissible hearsay as the information was gained from his wife. One gets the impression that nothing the defendants could do would mitigate their insult. This is consistent with the plaintiff’s general approach to this litigation.

[41] Whatever the precise cause, I am convinced that the plaintiff exaggerated and magnified many aspects of his evidence. Specifically, I am doubtful with respect to his credibility on the issue of the distribution of the document. There is no credible, admissible evidence that the document and the impugned two portions in particular were read by others.

Conclusion

[42] For these reasons, this defamation action is dismissed.

D.E HARRIS J. Released: August 13, 2018

COURT FILE NO.: CV-15-3516-00 DATE: 2018 08 13 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: ADHIN SUKHU Applicant - and – AMRITA RAMAUTAR and PADMAWATTIE RAJKUMAR Defendants REASONS FOR JUDGMENT D.E HARRIS J. Released: August 13, 2018