Court File and Parties
COURT FILE NO.: CV-18-597158 DATE: 2019-05-30 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: KEITH EMENY a.k.a. SEAN EMENY, Plaintiff AND: MAGGIE TOMASZEWSKI, Defendant
BEFORE: Sossin J.
COUNSEL: Jonas Granofsky, Counsel, for the Plaintiff No one appearing for the Defendant
HEARD: May 15, 2019
Endorsement
Overview
[1] The plaintiff, Keith Emeny a.k.a. Sean Emeny (“Emeny”), brings this motion for default judgment against the defendant, Maggie Tomaszewski (“Tomaszewski”), for damages for defamation and a permanent injunction restraining Tomaszewski from communicating defamatory statements about him.
[2] Emeny resides in Toronto and has been a comedian since 2009. He toured as a stand-up comedian throughout Canada, including performances as part of the “Just For Laughs” festival in Montreal, and as part of televised Canadian Broadcast Corporation (“CBC”) festivals in Winnipeg and Halifax.
[3] Tomaszewski is also a comedian. She is based in British Columbia, and was known to Emeny during the time that he resided in British Columbia between 2007-2013.
[4] The incident giving rise to the allegedly defamatory communications took place in British Columbia in 2013. At a mutual friend’s party, Tomaszewski accused Emeny of putting drugs in her drink. According to Emeny, Tomaszewski agreed to retreat from this allegation, until her publication of the allegedly defamatory statements in November 2017.
[5] In November 2017, Tomaszewski posted or caused to be posted allegedly defamatory statements and comments through tweets using the account Existential Bread@ExistentialCred, comments on the Vancouver Comedy Community Forum and Facebook.
[6] In his factum, Emeny identifies seventeen distinct posts, statements and comments which he asserts are defamatory (at para. 15) (the “defamatory communications”). These defamatory communications included the following representative posts:
“if I become a straight up predator like our boy @SeanEmeny here will you give me a job too?
“oh cool cbc [sic] fyi @seanemeny is fond of administering rophynol to women without their consent [sic] hahahaha so funny [sic] what a ham.”
“Hot tip: You guys could promote and may non [sic] rophynol carrying performers … that would be so chill.”
“@cbc I’m just a nobody, to be sure, but FYI maybe don’t hire @SeanEmeny anymore. Maybe pay a woman or non-rophynol carrying folks.”
“Maybe don’t book Sean Emeny anymore [sic] don’t know if you noticed but he loves to drug a drink … Especially if you’re also a comedian [sic] so he can kill 2 birds there. One less competitor and one less bitch [sic] am I right?”
[7] Cumulatively, Emeny alleges that these defamatory communications convey, through their natural and ordinary meaning, that Emeny is a “predator” who “commits illegal acts,” “drugs women without their consent,” “drugged the defendant [Tomaszewski]” and “should not be hired because he drugs women.”
[8] In response to these defamatory communications, Emeny commenced this action through a statement of claim issued on May 3, 2018.
[9] As a result of difficulties locating Tomaszewski, on October 25, 2018, Emeny brought a motion before Master McGraw for a six month extension for service of the statement of claim, which was granted.
[10] The statement of claim was finally served personally on Tomaszewski on November 13, 2018, in Surrey, British Columbia.
[11] Emeny served Tomszewski outside of Ontario without a court order. Emeny relies on Rule 17.02 (g) and (i) of the Rules of Civil Procedure, which entitles a party to serve a defendant outside of Ontario, inter alia, in respect of a tort committed in Ontario and for an injunction ordering a party to refrain from doing something in Ontario. In this case, there is evidence that the allegedly defamatory communications were downloaded and read in Ontario, and one of the remedies sought by Emeny is a permanent injunction enjoining Tomaszewski from publishing defamatory statements in Ontario. Therefore, service outside of Ontario without a court order in this case was authorized under the Rules.
[12] Tomaszewski has not responded to the claim or made any attempt to defend the action.
[13] Tomaszewski was noted in default on January 18, 2019.
Analysis
Default Judgment
[14] Under Rule 19.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg 194, a defendant who has been noted in default is deemed to admit the truth of the allegations made in the statement of claim.
[15] Under Rule 19.05(1), where the claim is for unliquidated damages and the motion for default judgment is brought before a judge, the motion is to be supported by an affidavit. Rule 19.06 requires the judge to inquire into whether the deemed factual admissions resulting from the default support a judgment on liability as well as damages; Grabenheimer v. Lala, 2019 ONSC 2811, at para. 25.
[16] In his statement of claim, Emeny seeks:
a. General damages in the amount of $500,000.00 b. Special damages in the amount of $200,000.00 c. Aggravated, exemplary and/or punitive damages in the amount of $300,000.00; and d. An interim, interlocutory, mandatory and permanent injunction to restrain Tomaszewski from communicating defamatory statements concerning Emeny.
[17] In his factum, Emeny has reduced the remedies sought, which now comprises:
a. General damages of $250,000.00; b. Special damages of $200,000.00; and c. Aggravated, exemplary and/or punitive damages in the amount of $300,000.00 d. and a permanent injunction, as set out in the statement of claim.
[18] There are two questions which must be addressed in the context of this default judgment proceeding: first, were the communications about which Emeny complains defamatory?; and second, if the communications were defamatory, what damages and other remedies are appropriate?
[19] I address each question in turn.
Were the Communications Defamatory?
[20] The first issue to address is whether the posts, statements and comments by Tomaszewski about Emeny were defamatory.
[21] There are three elements which must be proven in order to establish defamation: (1) the communication was published at least to another person; (2) the communication referred to the plaintiff; and (3) the communication was defamatory in that it would tend to lower the plaintiff’s reputation in the eyes of a reasonable person; Grant v. Torstar, 2009 SCC 61, [2009] 3 S.C.R. 640, at para. 28.
[22] In this case, the facts set out in Emeny’s statement of claim meet all three elements. First, the communications were posted through social media, which reached, potentially, many thousands of people; second, the communications referred expressly to Emeny by name, or by his social media account; and third, the communications, by asserting that Emeny is a predator who drugs the drinks of women, on its face would lower his reputation significantly in the eyes of a reasonable person.
[23] The communication in a defamation claim is presumed to be false unless the defendant proves to the contrary. In the context of a default judgment, therefore, the communications are presumed to be false.
[24] In light of this analysis, I find Tomaszewski’s communications concerning Emeny that are the subject of this claim to be defamatory.
What are the Appropriate Remedies and Damages for the Defamatory Statements?
[25] The remaining issue to be determined in the appropriateness of the damages claimed for the defamation in this case. In defamation cases, general, special and aggravated damages are generally available; Paramount v. Kevin J. Johnston, 2019 ONSC 2910 (“Paramount”), at para. 66.
[26] The criteria to be considered in determining the appropriate amount of damages must also be seen in the context of social media, where the communication is shared instantly, and is subject to “worldwide ubiquity and accessibility”; Barrick Gold Corp. v. Lopehandia, 2004 O.J. No. 2329 (“Barrick”), at para. 31.
[27] As the Supreme Court observed in Crookes v. Newton, 2011 SCC 47, per Abella J., at para. 38,
New activities on the Internet and the greater potential for anonymity amplify even further the ease with which a reputation can be harmed online:
The rapid expansion of the Internet coupled with the surging popularity of social networking services like Facebook and Twitter has created a situation where everyone is a potential publisher, including those unfamiliar with defamation law. A reputation can be destroyed in the click of a mouse, an anonymous email or an ill-timed Tweet.
Bryan G. Baynham, Q.C., and Daniel J. Reid, “The Modern-Day Soapbox: Defamation in the Age of the Internet”, in Defamation Law: Materials prepared for the Continuing Legal Education seminar, Defamation Law 2010 (2010), at p. 3.1.1
[28] Courts in Ontario and across Canada continue to grapple with the particular challenges of adapting the common law of defamation to the rapidly changing realities of how people post and share comments and information on social media, and this is an active topic of current study and potential law reform; see Law Commission of Ontario. “Defamation Law in the Internet Age: Consultation Paper,” Toronto, 2017, at pp.22-24 (online: http://www.lco-cdo.org/wp-content/uploads/2017/12/Defamation-Consultation-Paper-Eng.pdf).
[29] As Professor Jamie Cameron observed in her blog post, “Networking the Law of Defamation” Ryerson University Centre for Free Expression (May 24, 2018), (online: https://cfe.ryerson.ca/blog/2018/05/networking-law-defamation),
The internet is a juggernaut – a virtual space where any and all can send and post material almost at will, and in doing so deploy any number of sites and mechanisms to leverage internet voice. Reputation and the distinctive online damage it may sustain – by virtue of the speed, scope, impact and longevity of the internet’s reach – are caught in a vortex of freedom that is spiralling at all time and places and in all directions.
[30] Emeny’s claim indicates that the use of social media to publish the defamatory statements in this case was especially damaging to him. His professional opportunities as a comedian were curtailed almost immediately.
[31] On December 11, 2017, in response to Emeny’s request that his content be removed, a CBC indicated additional audio content was being removed as well:
Hi Sean
I understand from my colleagues you requested that (in light of the allegations about you), we pull down your content for the time being and as I’m sure you can appreciate, we think we should do the same with your (audio) content. This includes the Christmas material that I was going to broadcast this season.
I’m sorry about this Sean.
[32] A booking representative from the comedy company Yuk Yuk’s sent Emeny the following email on December 13, 2017:
Hey Sean,
Just want you to know it saddens me that on your request I have to replace you on the shows I booked you on. I’m 100% behind you in support and I hope you are able to move past the battering your reputation is taking right now…
[33] While the initial reaction to the defamatory statements was to put Emeny’s bookings on hold, to date, there is no evidence any media entity or venue will book Emeny or that other comedians will work with him or even associate with him. He states in his affidavit (at para. 35) that, “As of this date, no media entity or venue will book me, and no comedians will work with me or even associate with me.” Subsequently, he states (at para. 39), “It is unclear when or if I will be able to pursue my career in comedy or any other career.”
[34] In the aftermath of the defamatory communications by Tomaszewski, Emeny states that he suffered from a range of mental health illnesses including suicidal ideation and paranoia. He also states that the actions of Tomaszewski exacerbated other existing mental health conditions, such as severe anxiety and obsessive-compulsive disorder.
[35] Emeny refers to the state of his mental health as “dire” and that the damage to his health and finances has been “irreparable.”
[36] With this impact on Emeny in mind, I will address each head of damages in turn.
General Damages
[37] Emeny seeks general damages of $250,000.00.
[38] A plaintiff who has been defamed is entitled to general damages both for the loss of reputation in the eyes of the community, and the injury caused to one’s own sense of self as a result of the communication; Walker v. CFTO Ltd., at pp. 10-11.
[39] In his factum, Emeny submits that the defamatory communications were, “tailored and targeted to destroy Mr. Emeny’s personal and professional reputation in a profession where (similar to lawyers, accountants, doctors, etc.) the public has held individuals to account and ostensibly ended their careers for similar allegations of misconduct.” (at para. 48)
[40] Emeny argues the circumstances of this case are broadly analogous to Rutman v. Rabinowitz, 2018 ONCA 80 (“Rutman”), where $200,000.00 was awarded in damages for Internet defamation. In Rutman, an accountant was the subject of a sustained campaign by disgruntled business associated who posted maligning comments about him on an Internet bulletin board accessed widely in his field.
[41] While no two defamation cases are identical, and a comparative analysis is not determinative, I find the defamation in this case at least as damaging as in Rutman and other analogous cases. In Rutman, for example, there was no evidence that plaintiff in Rutman lost clients or that his ability to practice his profession was undermined by the defamatory comments at issue in that case. In this case, given the near total destruction of Emeny’s career and his compromised state of mental health following the defamatory communications from Tomaszewski, it is hard to imagine more serious examples of harm flowing from defamation.
[42] I find $250,000.00 in general damages sought by Emeny to be appropriate.
Special Damages
[43] Emeny seeks special damages of $200,000.00.
[44] Special damages may reflect a plaintiff’s lost income or revenue due to the defamatory communications. As Cory J. stated in Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130, at para. 169, “special damages for pecuniary loss are rarely claimed and often exceedingly difficult to prove.”
[45] In this case, Emeny has not received income from comedy since the defamatory communications, apart from very modest royalties for work recorded prior to the defamatory communications.
[46] Prior to the defamatory communications, Emeny has provided evidence that he had an agreement with the CBC to create a web series entitled “Sean Falls Asleep” and a deal with Comedy Records to release an album. He had a number of performances scheduled, including at Yuk Yuk’s in London, Hamilton and Toronto in December, 2017, which were cancelled.
[47] In his factum, Emeny asserts his career in comedy was on the “cusp of great financial success.”
[48] It is not possible to ascertain with certainty the extent of Emeny’s loss from the defamatory communications, nor what this loss might be in the future.
[49] While it is unclear whether Emeny will be able to pursue a career in comedy, the initial negative reaction to the defamatory communications in the evidence appeared to be temporary in nature – the email exchanges with the CBC and Yuk Yuk’s, for example, indicate that material was temporarily rather than permanently removed. Additionally, several of these decisions to postpone performances and productions was at the request of Emeny, who feared a negative backlash if he continued his career in the face of the defamatory communications.
[50] In these circumstances, I find special damages are appropriate, but at a lower level than that claimed by Emeny. I find that special damages of $100,000.00 are appropriate.
Punitive Damages
[51] Emeny seeks punitive damages of $300,000.00.
[52] Punitive damages are awarded where compensatory damages are inadequate to accomplish the objectives of retribution, deterrence and denunciation; Filice v. Complex Services Inc., 2018 ONCA 625, at para. 57; and Rutman, at paras. 94-97.
[53] In terms of the appropriate amount of punitive damages, in Pate Estate v. Galway-Cavendish and Harvey (Township), 2013 ONCA 669, at para. 200, the Court of Appeal set out the principles underlying the quantification of punitive damages as follows:
I would stress, however, the following principles that guide the quantification of punitive damages, as outlined in Whiten, at para. 94: (1) punitive damages must be assessed "in an amount reasonably proportionate to such factors as the harm caused, the degree of the misconduct, the relative vulnerability of the plaintiff and any advantage or profit gained by the defendant ... having regard to any other fines or penalties suffered by the defendant for the misconduct in question"; and (2) where compensatory damages are insufficient to accomplish the objectives of retribution, deterrence of the defendant and others from similar misconduct in the future, and the community's collective condemnation (denunciation) of what has occurred, punitive damages will be given "in an amount that is no greater than necessary to rationally accomplish" these objectives. As the Whiten court indicated, at para. 95, underlying these principles is "the need to emphasize the nature, scope and exceptional nature" of the punitive damages remedy, and "fairness to both sides".
[54] Emeny again relies on Rutman, where punitive damages for defamation of $250,000.00 were awarded. In Rutman, the trial judge found a concerted effort by the defendants to malign the plaintiff, including an attempted extortion to gain financial benefits.
[55] In this case, we have no insight into the motivation of Tomaszewski. In the absence of her defending this claim, while it is presumed that the communications are false, it cannot be presumed that the communications were made for any particular motive. Similarly, there is no evidence Tomaszewski benefitted in any way from the defamatory communications.
[56] As a result, while punitive damages are warranted in this case, given the sustained attempt to damage Emeny’s personal and professional reputation, and the use of social media platforms widely accessed in the media and entertainment community so as to amplify the impact of the defamatory communications, the punitive damages should not be at the highest end of the scale.
[57] In these circumstances, I find punitive damages of $100,000.00 appropriate to reflect the goals of retribution, deterrence and denunciation, which are not otherwise achieved through the substantial compensatory damages to which Emeny is entitled.
Permanent Injunction
[58] Finally, Emeny seeks a permanent injunction.
[59] None of the defamatory 2017 posts appears to be accessible currently, and the twitter account, Bread@ExistentialCred, has been removed. Emeny has also removed his own twitter account.
[60] Permanent injunctions are available where there is a likelihood that the defendant will continue to publish defamatory statements notwithstanding a finding of liability for doing so, and also where there is a real possibility that the plaintiff will not recover damages, given the difficulties of enforcing a judgment; Paramount, at para. 84.
[61] In the absence of any attempt to defend this action, it is not possible to determine whether Tomaszewski will publish defamatory statements in the future. Given the difficulties of personal service, and Tomaszewski’s decision not to respond to the claim, it does appear likely that Emeny may be unable to enforce a judgment against Tomaszewski. Further, it is not possible to know if she plans further defamatory communications.
[62] I find that Emeny has demonstrated the need for a permanent injunction, and it is granted. Tomaszewski is enjoined from disseminating, posting on the Internet, distributing or publishing in any manner whatsoever, directly or indirectly, statements, comments, videos, pictures of depictions about or concerning Emeny.
Conclusion
[63] For the reasons set out above, default judgment against Tomaszewski is granted.
[64] Tomaszewski is to pay damages to Emeny in the amount of $450,000.00. Specifically, I find Emeny is entitled to judgment with respect to the following heads of damages:
General damages in the amount of $250,000.00 Special damages in the amount of $100,000.00 Punitive damages in the amount of $100,000.00
[65] I also find that Emeny is entitled to a permanent injunction enjoining Tomaszewski from disseminating communications directly or indirectly concerning Emeny.
Costs
[66] Emeny seeks costs against Tomaszewski on a substantial indemnity basis in the amount of $11,328.56, inclusive of disbursements and H.S.T.. I find these costs reasonable and order Tomaszewski to pay Emeny costs in the amount of $11,328.56, all inclusive, within 30 days of this judgment.
Sossin J. Released: May 30, 2019