Court File and Parties
COURT FILE NO.: 15-66347 DATE: 2018/09/17 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Kevin Ramon Johnson Plaintiff – and – Deniz Rakhmanova Defendant
Counsel: Self-represented (for the Plaintiff) Self-represented (for the Defendant)
HEARD: November 16, 2017 (at Ottawa)
Reasons for Judgment
KANE J.
[1] The plaintiff commenced this proceeding on November 2, 2015 in which he seeks:
(a) $2 million damages for libel and interference with economic relations; (b) $1 million punitive, exemplary and aggravated damages; (c) a permanent injunction restraining Ms. Rakhmanova from communicating or distributing any defamatory statements about him, his aliases and businesses on the Internet or anywhere; and (d) prejudgment and post-judgment interest pursuant to the Courts of Justice Act, R.S.O. 1990, c. C. 43.
[2] Ms. Rakhmanova filed a Statement of Defence on November 20, 2015.
Motions
[3] Mr. Johnson alleges that he has some qualifications as a paralegal. He filed a motion for summary judgment dated January 26, 2016 without a supporting affidavit. That motion was returnable on January 23, 2017.
[4] Ms. Rakhmanova by motion dated February 14 and returnable March 2, 2016 sought summary judgment to dismiss Mr. Johnson’s proceeding as an invalid claim, frivolous, lacking merit and on the basis that it was a Strategic Lawsuit Against Public Participation (SLAPP) and should therefore be dismissed pursuant to s. 137.1 of the Courts of Justice Act R.S.O. 1990, c. C.43. She alternatively seeks dismissal of the plaintiff’s claim in response to the plaintiff’s motion for summary judgment.
[5] Warkentin J. on March 1, 2016, prior to argument, determined that the defendant’s motion was not properly pled and ordered a case management master or case conference to schedule a motion in the proper form.
[6] Mr. Johnson filed a new motion for summary judgment dated April 29 and returnable on May 13, 2016. The motion incorrectly states that the plaintiff is filing and relying upon his two affidavits in support thereof, dated February 29 and March 14, 2016. No signed affidavit for either of those dates is filed. Attached to that notice of motion is an unsigned affidavit from Mr. Johnson dated April 29, 2016. Mr. Johnson had scheduled this motion for one hour. The court on May 13, 2016 determined that one hour was insufficient, directed Mr. Johnson to obtain a full day appointment to argue his motion and ordered that both parties were to be present for argument of that motion.
[7] Mr. Johnson obtained a one day appointment returnable on February 14, 2017 for argument of his summary judgment motion and Ms. Rakhmanova’s cross motion to dismiss the proceeding as frivolous and without legal merit. Mr. Johnson failed to attend to argue his motion for summary judgment. McLean J. on February 14, 2017 rescheduled these motions to proceed on November 16, 2017, ordered that both parties be present on that return date and reserved the issue as to costs regarding February 14, 2017 to the hearing judge.
[8] Mr. Johnson failed to attend court to argue his summary judgment motion on November 16, 2017. Given his non-attendance and his failure to comply with two previous orders directing his attendance, his motion for summary judgment returnable November 16, 2017 is dismissed.
[9] The court on November 16, 2017 proceeded with argument of Ms. Rakhmanova’s cross motion to dismiss this proceeding as frivolous, without merit and in contravention of the Protection of Public Participation Act, S.O. 2015, c.23, intended to suppress critical comment and to financially punish the defendant.
[10] Ms. Rakhmanova alleges her emailed comments and postings relied upon by Mr. Johnson are accurate statements of fact or personal opinion by her and as such are not defamatory in nature.
Background
[11] Ms. Rakhmanova is a songwriter, singer and a painter.
[12] Mr. Johnson alleges that he is a songwriter, a music producer and owns a record label. He states he has various aliases including “Kaje Levi” “Apockt” and “Trackheadz”. He alleges that he previously owned “Kakophonie Records”, without indicating whether that was simply a trade name or incorporated, but states it no longer exists.
2012
[13] It is undisputed that Mr. Johnson and Ms. Rakhmanova in 2012 collaborated in the creation of three songs which were to be called “Sweet Angel”, “Heaven” and “Hypnotized” and which were to be released on Kakophonie Records.
[14] The collaboration between the parties in the creation of these three songs in April 2012 consisted of the following:
(a) Ms. Rakhmanova selected three electronic rhythmic beats sent to her by Mr. Johnson; (b) Ms. Rakhmanova then wrote the lyrics and melody of each of the three songs; (c) Ms. Rakhmanova recorded her singing of her lyrics and melody (“Her Performance”) over the selected electronic rhythmic beats she had selected from those sent to her by Mr. Johnson for each of the three songs; (d) Ms. Rakhmanova then provided Mr. Johnson with the recording she made of her singing each of the three songs she had created over his electronic rhythmic beat together with the name for each song; and (e) the parties then met and together mixed and mastered the final recording of each song by electronically adjusting Her Performance of the three songs and the underlying electronic rhythmic beat she had selected (the mixed final version of “Sweet Angel” hereinafter referred to as “Recording 1”).
[15] Mr. Johnson introduced Ms. Rakhmanova to Premier Muzik International which he used as a sub-publisher.
[16] The parties’ intention was that Recording 1 of “Sweet Angel” was to be the first of the three songs to be digitally posted or released.
[17] As Recording 1 was being completed, Ms. Rakhmanova requested that Mr. Johnson agree to and sign a joint publishing and master recording contract in recognition of their joint role as authors in recording their initial contributions and in the mixing and mastering of the final version of the three songs. She sought by contract recognition of their equal right as to publishing credit and master recording ownership including their equal share of all sale profits for each of the three songs. It was her intention to then register that contract and rights regarding the three songs with the Canadian Copyright Board.
[18] Despite her repeated requests, Mr. Johnson failed to sign the above master co-authorship and co-ownership contract in recognition of their joint authorship and recording of the three songs. His intention as is now clear was to claim sole ownership, rights and benefits of the three songs.
[19] Ms. Rakhmanova faced with that refusal accordingly advised Mr. Johnson of her termination of their working relationship as to the three songs and withdrew her consent as to his use of her three music melodies and her recording of her singing of the three songs. Recording 1 of “Sweet Angel” by that point however had already been digitally released on June 21, 2012.
[20] Mr. Johnson complied with Ms. Rakhmanova’s withdrawal of authority as to the other two songs which had not yet been released.
[21] Without detail as to the entity or the process, Mr. Johnson alleges the release of Recoding 1 occurred “through Beatport who is the plaintiff’s online digital musical distributor”.
[22] Mr. Johnson alleges he was the copyright owner of Recording 1 as he created Recording 1 in its fixed form and released it on his record label Kakophonie Records through his distributor Beatport. In support of that position, he relies upon the copyright provisions as to sound recording provisions in s. 18 (1) , (2) and (3) of the Copyright Act, R.S.C., 1985, c. C-42 (the “Act”).
[23] Ms. Rakhmanova considered her options regarding the release of Recording 1 without a co-ownership and authorship contract. She elected to take no action without waiver of any rights as the text and image of Recording 1 which identified her by name as the performing vocalist and displayed her image.
[24] Mr. Johnson after the digital posting of Recording 1 continued to ignore Ms. Rakhmanova and her rights in relation thereto. He failed to account to her for any sales or profits as to Recording 1.
Other Events
[25] Mr. Johnson without notice to Ms. Rakhmanova filed copyright applications in Canada and in the United States.
[26] The United States Copyright office on October 3, 2014 issued a Certificate of Registration to Mr. Johnson for the work “Sweet Angel” which identifies:
(a) Mr. Johnson as the author created: sound recording, performance, production, music; and (b) Ms. Rakhmanova as the author created: performance and lyrics.
The declared date of first publication is June 21, 2012, which is the date of release of “Sweet Angel” – Recording 1.
[27] Mr. Johnson chose to register this co-authorship of Recording 1 in the United States.
[28] The US Copyright Office advised Ms. Rakhmanova on April 7, 2016 that:
(c) an author, a copyright claimant or their authorized agent does not need a co-authors permission to register a work; and (d) that if the work is a joint work, either author may register the work. They also have the option to just register their authorship.
[29] Mr. Johnson in recognition of a royalty payment obligation, sent a $10 money order on behalf of KJE Levi Entertainment Inc. to Ms. Rakhmanova on October 30, 2015. Its stated purpose was payment of “the final and full royalty payment for Apockt feat Deniz Reno – ‘Sweet Angel’ (Recording 1) and Apockt – ‘Sweet” Angel’ The US Mixes (Recording 2) released on Kakophonie Records from June 21, 2012 to October 30, 2015”.
[30] Ms. Rakhmanova did not accept/deposit the $10 money transfer which was thereby cancelled.
[31] The Canadian Intellectual Property Office on November 2, 2015 issued a certificate of registration of copyright of the Sound Recording of the song “Sweet Angel feat. Deniz Reno, Artist: Apockt”, (Recording 1), to Kaje Levi Entertainment Inc. (“Kaje Levi Inc.”) as owner.
[32] Mr. Johnson did not include Kaje Levi Inc. as a plaintiff thereby limiting the basis of his claim to his registration of Recording 1 in the United States.
[33] Mr. Johnson commenced this proceeding on November 2, 2015. He then widely posted this Statement of Claim on numerous sites with a symbolic graphic image of a figure depicted as himself about to cast a spear into the body of a defeated figure he represented to be Ms. Rakhmanova.
2014
[34] Without notice to or consent of Ms. Rakhmanova, Mr. Johnson in April 2014 produced and released a new rendition of the song “Sweet Angel” (“Recording 2”).
[35] Recording 2 is not Recording 1, which Mr. Johnson claims U.S. copyright ownership of.
[36] Mr. Johnson in Recording 2 electronically removed the underlying sound beat in Recording 1. He inserted a different instrumental in Recording 2 over which he then digitally laid Ms. Rakhmanova’s original recording of her singing of her lyrics and her melody of “Sweet Angel” from Recording 1, thereby resulting in Recording 2.
[37] Despite his insertion of Her Performance in Recording 2, Mr. Johnson did not identify Ms. Rakhmanova as the performing vocal artist in the name or text of Recording 2. The title of “Sweet Angel” in Recording 2 only identifies one of Mr. Johnson’s performance acronyms. Recording 2 also does not bear Ms. Rakhmanova’s image as did Recording 1.
[38] Upon learning of the existence of Recording 2, Ms. Rakhmanova requested Mr. Johnson take down his electronic positing of Recording 2 which had been created through the insertion and use of Her Performance without her consent. Mr. Johnson ignored this takedown request but conceded his use of Her Performance by then inserting her name in the Recording 2 website announcing and describing Recording 2 of “Sweet Angel”.
[39] Mr. Johnson then posted Recording 2 on his social media sites.
Unlawful Interference In Economic Relations
[40] In support of this cause of action, Mr. Johnson relies upon A.I. Enterprises Ltd. v. Bram Enterprises Ltd., [2014] 1 S.C.R. 177. That Court identified the three essential elements of the tort of unlawful interference with economic relations as:
(a) the defendant must use unlawful means; (b) the defendant must intend to harm the plaintiff through the use of unlawful means; and (c) the conduct must give rise to a civil cause of action by a third party or would do so if the third party had suffered loss as a result of that conduct: paras 23, 35 and 76.
[41] Mr. Johnson:
(a) failed to plead or identify any third party; (b) failed to plead any loss occasioned to an unidentified third-party; and (c) failed to plead a cause of action or the basis of a cause of action which such unidentified third-party might have against Ms. Rakhmanova as a result of her communications to or about the plaintiff.
[42] Mr. Johnson has failed to plead the essential elements of this tort action against Ms. Rakhmanova based on unlawful interference in economic relations.
[43] This cause of action against Ms. Rakhmanova is accordingly dismissed. That conclusion is reinforced by his repeated non-compliance with court orders to attend and to argue the validity of his proceeding.
Alleged Defamation
[44] Mr. Johnson alleges Ms. Rakhmanova defamed him in her following electronic messages issued in response to his release of Recording 2:
(1) April 16, 2014 – defendant’s Twitter Account – “@Apockt please take down my @vocals and #lyrics off your track if you are not going to credit me for them soundcloud.com/apockt/set/sw …# stealing ” (Request). (2) April 16, 2014 – defendant’s SoundCloud account – “APOCKT (a.k.a. Kaje Levi, Kaje, Trackheadz) has rereleased an unauthorized mix of Sweet Angel without my prior knowledge or approval. My likeness and name have been taken off this new mix and my vocals were used without my permission. I have contacted Apockt to take down this track but he has chosen to persist in infringing of my copyright and attempting to profit from this “new unauthorized mix”. The mix above is the only authorized mix of this song and the only one approved by me. All other reproductions are illegal .” (3) April 25, 2014 – defendant’s Twitter account – # plagiarism @Apockt please take down my #vocals & #lyrics off your track if you are not going to credit me.” (4) April 26, 2014 – defendant’s Twitter, Facebook and Instagram accounts – “it is come to my attention about #Toronto DJ@Apockt aka #KajeLevi of http”//www.kajelevi.com has re-released and unauthorized mix of #Sweet Angel without my prior knowledge or approval. My vocals on this mix have been used without my consent and my likeness and name omitted from the track name and cover art. I have contacted APOCKT asking him to take down this track but he has chosen to persist on infringing on my copyright and attempting to release this track for sale on his label #Kakophonie. This message is to notify my friends and followers that any mix by APOCKT of our track Sweet Angel other than the one shown on the above cover art and posted on my soundcloud page, is unauthorized and unlawful. #Infringement #DJ #socan #electronic music # piracy #kajetrackheadz #beatport@beatport #Amazon #soundcloud #mixcloud # illegal #musicproduction”. (5) April 26, 2014 email to Mr. Johnson – @Apockt Don’t know what the point of stealing my acappella’s was. You should have just made your own truck and saved your rep . #SweetAngel.” (6) April 26, 2014 – defendant’s Twitter account – “@Apockt Please take #Sweet Angel down, I didn’t authorize the use of my vocals on it. You are stealing my copyrighted intellectual property .” (7) April 26, 2014 – defendant’s Twitter account – “@Apockt The 22K of fake views you brought to promote it is not going to make what you are doing more legitimate. #Fake Views #Toronto #DJ.” (8) April 26, 2014 – defendant’s Facebook account – “gotta love when someone takes a track you wrote with them two years ago, re-releases it under a new mix with your vocals, takes your name off it, takes your face off the official approved cover art and puts it out as a track. And this is the same person who claims other people in the music industry have ripped him off in the past and took credit for his work. I mean you have to be kidding … and the only reason I found out was because I looked up this track [because of course I was not told about this or asked permission]. #Toronto #DJ #Apockt #Sweet Angel # Illegal .” (9) May 6, 2014 – defendant’s Facebook account – “Please remove the new version of Sweet Angel from your social media. It is an unauthorized release , made without consent or prior knowledge of the vocalist ... whose direct association with the track you have also failed to credit .” (10) May 5 and 6, 2014 – defendant’s Facebook account – “Please remove the new version of Sweet Angel from social media. It is an unauthorized release, made without consent or prior knowledge of the vocalist … , Whose direct association with the track you have also failed to credit. https:// some cloud.com/apockt/sets/sweet-angel-single. The original version of this track was released in 2012 as Apockt feat Deniz Reno - Sweet Angel as was authorized under a different mix and a cover art. You have no permission to re-release and/or profit from this track without prior approval of the artist involved.” (11) Posted on defendant’s Twitter account – “Do NOT buy my track #Sweet Angel on #Beatport or #Tunes. My vocals were stolen and released without my consent by apockt for profit. [http://twitter.com/denizreno/status/515126390564610048).” (12) May 6, 2014 – defendant’s email response to Beatport – “This is ridiculous and I am going to continue posting about this issue in social media making both Apockt and Beatport look bad for supporting blatant theft of intellectual property . I’m not going to let this go, right now you are acting as accessory to theft of intellectual property .” (13) April 24, 2015 – defendant’s email response to Premier Muzik – “Thank you for looking into this. I appreciate your time and for your sake, I hope you realize that the kind of client you are dealing with . I filed reports with Soundcloud and Beatport as well as making this public within the industry circle both Kaje and I are part of. There have been numerous requests from other Canadian and US DJs to remove the track, who post on my behalf on Kaje’s social media , which were swiftly removed by him. As much as Kaje has refused to admit guilt, I’m happy to know that he still values what’s left of his reputation and realizes that it is not worth it.” (14) June 27, 2014 – defendant’s email response to Premier Muzik – “Thank you for your emails. …. The amount here is not the question, it’s a question of principle and first and foremost, contractual obligation. I would not if I were you, make those kinds of remarks simply due to the fact that the show of values behind them may make a larger client very uncomfortable in having you handle their business. …. I really would hate to put you in the same boat as Kaje. With Kaje’s sociopathic mindset and the business practices, he’s on a fast track to alienating himself from this industry and collecting welfare . Because you can’t stand behind an individual who pretends to be different people [with different legal names ] just to make his label look more than it is, and the buys plays and Twitter followers by the thousands to make it seem like people actually listen to his music? You should really check on your clients more closely, and pay more attention to the needs of the ones that aren’t as it turns out, has been [or rather has-never-even-been] con artists who shamelessly peddle stolen acappellas from four years ago.” (15) January 23, 2015 – defendant’s email response to YouTube – “… Kaje Levi Entertainment aka Kaje Levi or Apockt has been illegally using my vocals on his track for a year now . He has financially exploited the track Sweet Angel without any payouts to my name [the track was originally released, and the contract we had terminated in 2012]. He cannot produce a contract where I authorized him to use my vocals, because no such authorization was given. Now he is going around various social media sites serving me with takedown notices, and the irony of the situation is that he has stolen my vocals, that I recorded in my own studio, and selling them without having paid me any royalties whatsoever . If you are served with a legal notice from any of his lawyers, please know that he has no lawyer, he is a paralegal himself, or something of the sort he claims to be. And he has made it a habit pretending to be various different people online, appropriating various names, sending letters on behalf of his record label to give it an aura of authenticity, claiming that what he is doing is legal. THE YOUTUBE SUBSCRIBERS ON HIS LABEL ACCOUNT KAJE KAKOPHONIE [2] ARE ALL BOTS . I ask you to have him produce sign contracts that state his ownership of my vocals, only then do I think that it is fair that my video be taken down. Otherwise you are going by a claim from a highly unstable individual, who steals copyrighted materials from other artists and sells it as his own.” (emphasis added)
[45] The above messages of Ms. Rakhmanova complain and relate to Mr. Johnson’s incorporation in Recording 2 of her song title and the recording she made of herself singing her lyrics and melody for and on Recording 1 without her permission. Ms. Rakhmanova is not in these comments being critical about the release or marketing of Recording 1 by Mr. Johnson.
[46] Mr. Johnson alleges that:
(a) Ms. Rakhmanova’s above comments are defamatory and were not part of the free exchange of ideas or an honest opinion as she asserted facts that were false; (b) Ms. Rakhmanova is not a blogger, journalist or member of a group advocating for social change for the benefit of anyone and the above comments therefore were not an open criticism of his work or in the public interest; (c) Ms. Rakhmanova falsely claimed ownership of the sound recording for “Sweet Angel” and sent multiple takedown requests to the plaintiff’s business partners in the United States; and (d) Ms. Rakhmanova deliberately violated 17 U.S. Code 512 (3)(A)(vi) of the Digital Millennium Copyright Act of the United States by falsely signing without his authorization, “under penalty of perjury, that the complaining party authorized to act on behalf of the owner of an exclusive right that is allegedly infringed”.
Analysis
[47] To establish defamation entitling judgment and damages, Mr. Johnson must prove that:
(a) the words or communication complained of would lower his reputation in the eyes of a reasonable person; (b) the words complained of referred to him; (c) the words were communicated to a person or persons in addition to himself: Grant v. Torstar Corp., 2009 SCC 61 at para 28; and
[48] The highlighted words or phrases in the 15 communications pled as defamation:
(a) refer to Mr. Johnson; (b) would lower his reputation in the mind of a reasonable person; (c) were communicated to persons beyond the plaintiff; and (d) are defamatory.
[49] A finding of defamation raises a presumption that the words complained of were false, that they were communicated with malice and that the plaintiff suffered damage. That presumption of falsity is rebutted by the defendant proving truth or justification. The presumption of malice, regardless of the truth of the statement, may be overcome by the defendant establishing any of the defences of fair comment, qualified privilege or responsible communication or reporting, which then requires the plaintiff to prove actual or express malice to overcome such defences: Wang v. British Colombia Medical Association, 2013 BCSC 394, 228 A.C.W.S. (3d) 583, at paras 29 and 30, affirmed, 2014 BCCA 162, 354 B.C.A.C. 188.
[50] Justification as a defence requires the defendant produce evidence to demonstrate that the statement was substantially true: Grant, para 30.
[51] The defence of fair comment requires determination that the comment complained of is one that anyone could have honestly expressed: Grant, para 23 and WIC Radio Ltd. v. Simpson, 2008 SCC 40, [2008] 2 S.C.R. 420, at para. 28.
[52] Fair comment as a defence requires the defendant to establish that:
(a) the comment must be on a matter of public interest; (b) the comment must be based on fact; (c) the comment, though it can include inferences of fact, must be recognizable as comment; (d) it must meet an objective test, namely could any person honestly express that opinion on the proven facts; and (e) however, the fair comment defence may be defeated if the plaintiff proves that the defendant was subjectively actuated by express malice which includes spite, ill will or disregard whether the words used were true: Grant at para 28 and Smith v. Cross, 2009 BCCA 529, 278 B.C.A.C. 262.
[53] S. 18(1) of the Act relied upon by Mr. Johnson states that the maker of a sound recording has a copyright in the sound recording, consisting of the sole right to publish it for the first time and reproduce it in any material form or authorize such acts. This right of copyright pursuant to s. 18(2) only applies if the maker of the sound recording at the time of the first fixation was a Canadian citizen or permanent resident.
[54] As indicated, Mr. Johnson as plaintiff is not the Canadian copyright owner. Kaje Levi Entertainment Inc. is the registrant of the Canadian Certificate of Recording 1.
[55] The Canadian musical copyright registration of Recording 1 however is distinct and separate from the use of Ms. Rakhmanova’s recording of her voice singing her melody and lyrics from Recoding 1 laid over a new electronic beat in Recording 2.
[56] Mr. Johnson is incorrect that the Canadian copyright registration of Recording 1 granted him copyright thereof or entitled him to insert Her Performance of her melody and lyrics in Recording 2.
[57] Mr. Johnson’s submissions and his actions at the time ignore the following provisions of the Canadian Copyright Act which acknowledge Ms. Rakhmanova’s copyright interest.
[58] S. 13(1) states that subject to the Act, the author of a work, which includes a musical work and its title, shall be the first owner of the copyright therein. Ms. Rakhmanova authored the title, melody and lyrics and sang and performed them in Recording 1. She thereby was the copyright owner of those elements.
[59] S. 9(1) of the Act reflects the fact that Ms. Rakhmanova and Mr. Johnson each had copyright in Recording 1 of “Sweet Angel”. It states that in the case of a work of joint authorship, copyright shall subsist during the life of the author who dies last and for a period of 50 years following the end of that calendar year. Ms. Rakhmanova’s copyrights to the name, lyrics and melody she performed in Recording 1 existed when Mr. Johnson inserted those elements without her permission in Recording 2.
[60] S. 14.1(1) of the Act provides that the author of the work, subject to section 28.2, has the moral right to the integrity of the work and in connection with a musical work’s communication to the public by telecommunication, the right to be associated with the work as its author or under a pseudonym. Mr. Johnson contrary to this right, attempted to disassociate Ms. Rakhmanova from her performance, lyrics and melody in Recording 2.
[61] S. 28.1 and 28.2 of the Act state that:
(a) any act or omission that is contrary to any of the moral rights of the author of the work or of the performer of a performers performance is, absence the author’s or performer’s consent, an infringement of those rights; and (b) the author’s or performer’s right to the integrity of the work or the performer’s performance is infringed only if the work or the performance is, to the prejudice of its author’s or performer’s honor or reputation, distorted or otherwise modified.
[62] Mr. Johnson in Recording 2 breached the moral rights and modified Ms. Rakhmanova recorded performance of “Sweet Angel” in Recording 1.
[63] Based upon the above analysis of the facts and law, the highlighted defamatory comments of Ms. Rakhmanova numbered 1 to 6 and 8 to 13 are accurate, truthful and therefore justified. That determination defeats the presumption that the words complained of were false, were communicated with malice and the plaintiff suffered damages, thereby constituting her defence to the defamation claim based thereon.
[64] Independent of the above conclusion, the court notes the statements relied upon by the plaintiff in those paragraphs 1 to 6 and 8 to 13 are statements of fact and are not comments as they involve matters of personal and not public interest. The defence of fair comment is not therefore available as to these statements which however are not defamatory statements for the above reasons.
[65] Ms. Rakhmanova however has without the need of a trial clearly established the validity of her defence of justification as to paragraphs 1 to 6 and 8 to 13. This proceeding as to those comments lacks merit, is frivolous and improperly brought.
[66] The defamatory action as related to the comments in paragraph 1 to 6 and 8 to 13 is accordingly dismissed.
[67] Ms. Rakhmanova has not demonstrated justification or fair comment as a defence to the above highlighted portions of her comments from paragraphs number 7, 14 and 15.
[68] Who these defamatory comments refer to is not proven. The justification of these comments has not yet been established and remains to be proven. It cannot at this point be determined that the defamation claim as to those comments is frivolous, lacks any merit and should be struck at this preliminary stage.
[69] The appropriate forum for defamation in the United States is based upon the rights of the plaintiff pursuant to a United States copyright registration of Recording 1, is in that jurisdiction and not Ontario and reliance upon the Act being Canadian legislation.
[70] This conclusion is reinforced by Mr. Johnson’s repeated refusal to appear and attorn to this court’s jurisdiction.
[71] This defamation action as to the remaining defamatory comments in paragraphs 7, 14 and 15 accordingly is dismissed.
SLAPP Litigation
Security for Proceeding
[72] The central issue as to s. 137.1 of the Court of Justice Act is the interpretation and scope of the phrase “matters of public interest” therein.
[73] The dispute and subject of this proceeding:
(a) does not affect and thereby concern people at large; (b) does not generally affect the welfare of citizens; and (c) does not involve a matter of considerable public notoriety, controversy or debate: Grant v. Torstar Corp., 2009 SCC 61, paras. 101-106, and Lascaris v. B’nai Brith Canada, 2018 ONSC 3068, paras. 34 and 39.
[74] Ms. Rakhmanova’s motion pursuant to s. 137.1 is accordingly dismissed.
Costs
[75] Given:
(a) the material success of Ms. Rakhmanova on her motion; (b) Mr. Johnson’s lack of success on his motion; (c) the importance of the issues to each party; and (d) Mr. Johnson’s failure to attend court as ordered on February 14 and November 16, 2017 have resulted in delay of this proceeding and wasted time and resources of Ms. Rakhmanova and the court;
Mr. Johnson is ordered to pay costs of these two motions and the failed court attendance on February 14, 2017 to Ms. Rakhmanova by September 30, 2018 in the amount of $2,740 consisting of:
(a) $1,885 being Ms. Rakhmanova’s lost salary to attend court in Ottawa on February 14 and November 16, 2018; and (b) $855 of out of pocket travel and accommodation disbursements to attend court on those two occasions.