COURT FILE NO.: CV-18-607781

DATE: 2019-11-27

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: HARDEV KUMAR AKA HARDEV KUMARKKREJA, Plaintiff

AND: VINOD KHURANA, Defendant

BEFORE: Schabas J.

COUNSEL: Hardev Kumar, for himself No one appearing for Vinod Khurana

HEARD: November 25, 2019

REASONS FOR JUDGMENT

[1] This is the second action for defamation brought by the plaintiff against the defendant. In December 2015, Faieta J. granted judgment for the plaintiff arising from defamatory statements made in 2013 on social media and awarded $30,000 in damages, plus $2,000 for costs. See Kumar v. Khurana, 2015 ONSC 7858.

[2] Like that proceeding, this case has not been defended. The defendant was noted in default, and a trial was held to give the plaintiff an opportunity to establish his case and justify any damages to be awarded.

Background

[3] The plaintiff is now 77 years of age. He lives in Toronto with his wife and other family members. The defendant is the plaintiff’s nephew who now, apparently, lives in Virginia, in the United States. Although notified of the trial date, the defendant advised the Court that he could not afford to attend the trial.

[4] The background to the animosity between the parties arises, it appears, from the plaintiff’s lack of an inheritance from his parents in India, who left a valuable property to his brother. There is some suggestion that the plaintiff is bitter over this and may be in need of money for his retirement. I make no finding on whether any of this is correct, but simply state it to provide some context to the dispute.

[5] The communications which are complained of in the statement of claim are a series of thirteen emails by the defendant to the plaintiff sent on August 12, 2018 and in the early morning hours of August 13, 2018, and two additional emails sent on August 23, 2018. The last three emails sent on August 13 and the two emails sent on August 23 were also sent to a small number of the plaintiff’s relatives.

[6] The emails are abusive of the plaintiff, referring to him as, among other things, a “beggar” and an “extortionist”, calling him a “bastard” who “will die in shame”. At least one email tells the plaintiff that the defendant will “get you back”, and that the plaintiff “will go to jail”. There is reference to the earlier judgment, on which the plaintiff was seeking execution at the time and the defendant was moving to set aside – a motion which was dismissed by Nakatsuru J. on February 1, 2019 – and the plaintiff is told he “will not see a single penny.”

[7] In fact, the plaintiff has received payment of the judgment awarded by Faieta J., which was achieved following the plaintiff initiating proceedings to sell a condominium owned by the defendant in Toronto.

[8] The plaintiff filed an affidavit at the trial setting out the background of the previous action, and correspondence from the defendant regarding enforcement and the motion to set the judgement aside, which included a letter to the Sherriff calling the plaintiff an “extortionist. The affidavit asserts that this “campaign” is “much more menacing and threatening and even more defamatory” than the communications in the earlier action, and that they have had “a traumatic and devastating effect on myself, my family and my standing in the community”.

[9] The plaintiff also testified. He confirmed that he was not aware of anyone else receiving the emails but the people listed on them. This was, at most, six people, all of whom are relatives. Two live in India and the plaintiff has little, if any, contact with them. The others are closer and live in the Toronto area. According to the plaintiff, these relatives do not communicate with the defendant and do not give the emails any credence. The plaintiff continues to see them, and he continues to attend family and social events, although he avoids conversations with friends of the defendant. Aside from the recent court appearances in which the defendant sought to set aside the earlier judgment, the plaintiff has not seen the defendant since 2011. However, the plaintiff said he fears for his safety and installed CCTV cameras around his house in September 2018, and informed the police of his concerns.

[10] The plaintiff says that his grandchildren have become aware of the communications, though it is not clear how, and he feels his reputation has been harmed. He says he has become withdrawn, does not go out, feels tired and under stress. He told the Court he has been seeing a psychiatrist once a month for the past 6 months about stress arising from the “insult” by the defendant. However, the psychiatrist was not called as a witness, nor were any other witnesses called.

[11] Mr. Kumar also provided the Court with recent emails between the defendant, the plaintiff and the Court regarding the trial date, which contained statements critical of the plaintiff by the defendant; however, the comments by the defendant are essentially a complaint that he feels victimized by the plaintiff and wants nothing more to do with him. In any event, they are not the subject of the action.

Analysis

[12] The statement of claim pleads defamation and harassment. At the trial, I advised the plaintiff of the Ontario Court of Appeal decision in Merrifield v. Canada (Attorney General), 2019 ONCA 205, in which the Court declined to recognize a tort of harassment in Ontario. Accordingly, the plaintiff did not press that issue and I address the case solely on the basis of defamation.

[13] Defamation is a strict liability tort. The plaintiff must prove three things to obtain judgment and be awarded damages: “(1) that the impugned words were defamatory, in the sense that they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person; (2) that the words in fact referred to the plaintiff; and (3) that the words were published, meaning that they were communicated to at least one person other than the plaintiff”: Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640 at para. 28.

[14] Here the test is met, as the words are defamatory, referred to the plaintiff, and were communicated to persons other than the plaintiff. As the defendant has not defended, none of the defences to defamation arise.

[15] The issue, then, is what damages or other remedies should flow from the defamation? The plaintiff submits that the defendant needs to be “punished” and that he should compensate the plaintiff for the harm he has suffered. The plaintiff says he should receive an award similar to that granted by Justice Faieta - $15,000 for general damages and $15,000 for aggravated damages. The plaintiff also seeks a permanent injunction restraining the defendant from making further defamatory statements.

[16] But this case is not like the previous action. The defamation considered by Faieta J. was on social media, involving posts on Facebook that were viewed by many people. The plaintiff testified that he believed that “hundreds of people may have read the Facebook statements.” Not so here. There is no evidence that anyone other than the six relatives copied on a few of the emails saw or read them. And the evidence, given by the plaintiff, is that the Canadian-based relatives did not accept the statements and therefore there was no reputational harm to him at all.

[17] The emails themselves were sent in quick succession on three days, and may be appropriately described as insults or rants to which reasonable people would likely give little credence.

[18] The plaintiff said he is deeply hurt by them, but if that is the case – unlike the earlier trial he has produced no evidence from his physicians – it is his feelings which have been hurt and not his reputation.

[19] The defamatory emails can hardly be described as a campaign against the plaintiff. While it is claimed they are threatening, that meaning is a stretch given the context of the emails, and there is no evidence to suggest the plaintiff should reasonably fear for his safety. The plaintiff and the defendant clearly have their differences, but they live far apart and their only contact in the past several years has been in these libel cases. The defendant has not repeated his statements since they were made on these isolated occasions in August 2018.

[20] I accept that damages are presumed when defamation is established, but that does not mean that damages must be substantial. In this case, there is no evidence that the plaintiff has suffered any damage to his reputation, and while that is often the case as reputational harm is difficult to prove, the evidence here suggests that he has not, in fact, suffered any such harm. The evidence is that those to whom the emails were sent continue to socialize with the plaintiff and rejected what was said by the defendant. While two recipients are in India, the plaintiff’s contact with them is minimal, if any. He has not visited India for many years and has lived in Canada most of his life.

[21] Unlike the earlier action, and cases such as Barrick Gold Corporation v. Lopehandia et al. (2004), 2004 CanLII 12938 (ON CA), 71 O.R. (3d) 416 (C.A.), the defamatory statements in this case are short, isolated and were not widely published.

[22] Libel litigation should not be seen as a ready ticket to substantial damages. In my view, given the minimal publication and the evidence of a lack of harm to reputation, the plaintiff is entitled to only nominal damages. The plaintiff has suffered little, if any, harm to his reputation and I award him the sum of $500 for general damages.

[23] No injunction will be issued. Orders enjoining speech raise concerns about freedom of expression, are difficult to appropriately define, and are challenging to enforce. The defendant has not repeated his statements and his recent emails to the court indicate he wants nothing more to do with the plaintiff.

[24] The plaintiff has represented himself. I make no order as to costs.

Schabas J.

Date: November 27, 2019