Overview

[1] This is a motion for summary judgment in a defamation action. The defendant has had three lawyers since this action was commenced but appeared on the motion on his own behalf. A statement of defence was filed, but no evidence was filed in response to the motion for summary judgment. No adjournment was sought. Mr. Wu stated that he was glad for the opportunity to present his case before the court.

[2] For the reasons that follow, I find that the plaintiff has established the tort of defamation. There is no issue requiring a trial. The words complained of were:

(a) defamatory;

(b) of and concerning the plaintiff; and

The defendant has failed to establish any defence. I find that the statements were not true and cannot be characterized as falling within the bounds of fair comment or qualified privilege. I assess damages in the amount of $35,000 and award full indemnity costs in the amount of $15,414.90.

Background

[3] The plaintiff, Mr. Zhong, is a naturalized Canadian citizen who immigrated to Canada from the People’s Republic of China 30 years ago. He was a practising medical doctor in China. Since immigrating to Canada, Mr. Zhong has been actively involved in the Toronto Chinese community. In particular, he is a social worker, the chief executive officer of the Toronto Community & Culture Centre and the co-chair of the National Congress of Chinese Canadians.

[4] Mr. Zhong’s contributions to the Toronto Chinese community have been well recognized. In 2010 he had the honour of meeting with Queen Elizabeth II and Prince Philip in Toronto. In February 2010 Mr. Zhong was awarded the Queen Elizabeth Diamond Jubilee Medal by Prime Minister Stephen Harper and Governor General David Johnson for his many years of service to the Toronto Chinese community. Mr. Zhong relies on his good reputation to function effectively as a social worker and to provide the services of the Toronto Community & Culture Centre.

[5] Mr. Zhong is married to Haiyan Li. They have been happily married for over 20 years and have an adult daughter.

[6] Mr. Wu is a resident of Toronto. He is an active member of the Toronto Chinese community and an active member of multiple WeChat groups. Mr. Wu is self-employed as a construction worker/contractor.

[7] WeChat is a social media platform operated by a Chinese company. It is a multipurpose messaging, social media and payment application which is extremely popular among Chinese speaking mobile phone users. WeChat provides a function called WeChat Group, which allows users to create discussion groups to chat with group members, post images, text, etc. Each WeChat Group may have up to 500 users. Information posted in a WeChat Group is viewable and accessible to all group members and can only be deleted by the member who posted the information. Information posted by members in a WeChat Group is meant to be reviewed by all members and to be communicated to all members of the group. Information or messages posted in one WeChat group can be copied and forwarded to other groups, thus rendering the information potentially accessible to all WeChat users.

Analysis

[8] From February to May 2019, Mr. Wu posted messages on WeChat. These messages were about Mr. Zhong. They included statements to the effect that Mr. Zhong:

(a) defrauds three levels of government of $1.4 million each year;

(b) owns four or five luxury houses, five or six luxury cars and has a lot of lovers and girlfriends

(c) has been blackmailing and extorting from various members of the Chinese community, bullying women and snatching the wives of others, embezzling public funds and conducting corruption and bribery, while playing the role of an undercover agent for Falun Gong;

(d) operates a cultural centre in Toronto which contains a secret office used by Mr. Zhong to sexually assault female student volunteers;

(e) sexually assaulted his own wife;

(f) attempted to frame the former Chinese Consul General by purchasing and giving a $20,000 ring to the Consul General’s wife;

(g) is driven by a strong sexual urge without restraint; and that

(h) Mr. Zhong’s wife suffers from depression as a result of the bad things that Mr. Zhong has done.

[9] Mr. Wu posted dozens of messages of this kind, sometimes asserting in the post that his statements are all based on evidence and the testimony of witnesses.

[10] The plaintiff served Mr. Wu with a defamation notice. Mr. Wu posted the defamation notice on WeChat, thus repeating the defamatory statements. A notice of action was issued and demand was made on Mr. Wu to remove the WeChat posts and provide an apology. Mr. Wu was told not to publish the notice of action. Through counsel, Mr. Wu refused to remove the posts or make an apology. He claimed the right to publish the notice of action. Mr. Wu then proceeded to post the notice of action on WeChat, again repeating the defamatory statements. Mr. Wu then posted several additional statements, telling members of his WeChat Group that Mr. Zhong had threatened and blackmailed him.

[11] A statement of claim was issued, claiming an interim and permanent injunction and damages. On May 16, 2019, an interim injunction was obtained on consent, requiring the existing posts to be removed and prohibiting Mr. Wu from publishing libelous information or remarks about Mr. Zhong. Subsequently, Mr. Wu posted a message on two WeChat groups stating that “Zhong attempted to stop me from continuing to expose [him] after I finally dragged [Zhong] to court.”

[12] Mr. Wu’s two-page statement of defence acknowledges that he conveyed “facts” about Mr. Zhong in posts to WeChat Groups. His defence does not deny that he was the person who posted the statements complained of about Mr. Zhong. Mr. Wu’s statement of defence pleads that he expressed these statements about the plaintiff in WeChat Groups “only for the purpose of safeguarding the public interest.” The statement of defence goes on to say that a democratic society must uphold freedom of speech and that the defendant’s statements did not cause any harm to the plaintiff.

Summary Judgment

[13] Summary judgment shall be granted if the court finds there is no genuine issue requiring a trial. The remedy of summary judgement is available to resolve a defamation action in appropriate circumstances, Zoutman v. Graham 2019 ONSC 2834, 2019 O.J. No. 2398.

Defamation

[14] The tort of defamation requires the plaintiff to establish that the words complained of were:

(a) defamatory;

(b) of and concerning the plaintiff; and

[15] To determine whether the words complained of are defamatory, the plaintiff must show the main thrust, or “defamatory sting,” of those words. In every defamation action, the trier of fact must determine the defamatory sting from both the plain meaning of the words complained of and from what the ordinary, reasonable person would infer from them in the context in which those words were published, Cusson v. Quan, 2007 ONCA 771 at para 34.

[16] Sometimes it is not necessary to go beyond the words themselves, as where the plaintiff has been called a thief or a murderer. Often, however, the sting is not so much in the words themselves as in what the ordinary person will infer from them, and that is also regarded as part of their natural and ordinary meaning.

[17] The defamatory sting is not determined on a narrow reading of the words complained of in isolation. Context informs what meaning the ordinary person will infer from the words complained of: the words must be given their meaning in context. The statements do not stand by themselves but must be read in light of what has preceded them and what follows.

[18] Here, many of the words complained of are, on their face, defamatory. This includes the allegations of fraud, embezzlement, bribery, corruption, sexual assault and being a sexual predator. Other statements take their defamatory sting from the context. These include allegations that Mr. Zhong owns many luxury homes and cars and that he is womanizer, has strong sexual urges and is promiscuous. These allegations feed off, and feed, the allegations of financial and sexual misconduct. I have no hesitation in concluding that the words complained of are defamatory.

[19] There is similarly no doubt that the words are of and concerning Mr. Zhong. This was admitted in Mr. Wu’s statement of defence and during his submissions.

[20] Finally, there is no doubt that the statements were published. This too is admitted and there is substantial evidence to show that the statements were published in dozens of posts on a widely used social media platform.

[21] The evidence before the court is that none of the defamatory statements made about Mr. Zhong in the WeChat posts are true. Both Mr. Zhong and Ms. Li, under oath, categorically denied these allegations. Mr. Wu’s defence does not plead justification. He has, in any event, presented no evidence whatsoever that anything he said about Mr. Zhong or Ms. Li, is true. In his oral submissions, Mr. Wu claimed that he had witnesses but admitted that no one was prepared to testify. The defence of justification cannot be made out. The statements were proved false.

[22] Because Mr. Wu’s defence mentions the public interest and freedom of speech, I will deal with the possible defences of fair comment and qualified privilege, even though they are not properly pleaded and there is no evidence from Mr. Wu to support them.

[23] The defence of fair comment requires proof that the statements were fair, comment and on a matter of public interest. The statements were neither fair nor comment. They were not fair because Mr. Wu admitted he did not know Mr. Zhong or Ms. Li and had never met or spoken to them. He further admitted that the basis for his statements was rumour and innuendo from other, unidentified, people. Mr. Wu had no personal knowledge of these allegations and made no effort to investigate or substantiate them. Further, the statements are statements of fact, not comment. This too is admitted in the statement of defence and is apparent from the statements themselves. There was no matter of public interest at play. There is no basis for the defence of fair comment.

[24] Qualified privilege rests upon establishing that the defendant a duty to publish and that there was a corresponding interest in receiving the statements complained of. The defendant must also show that the statements were made without malice. Mr. Wu cannot make out any of these requirements. Mr. Wu owed no duty to make these statements. The other members of the WeChat group had no corresponding duty or interest in receiving them. Further, the statements were plainly made with malicious intent or were published with such reckless disregard of the truth as to constitute malice. There was no effort to investigate or confirm the basis for the statements. Mr. Wu expressly acknowledged that the statements would be hurtful and upsetting to Mr. Zhong. Mr. Wu wrote in one post that he would not be responsible if Mr. Zhong committed acts of self-harm, self injury or suicide. This is clear evidence that Mr. Wu knew the statements would cause severe mental and physical harm and cause considerable distress and anguish to Mr. Zhong and his family. Further, malice may be inferred from the mode and style, the tenor, the tone and the spirit of the communications and the language which the defendant has used. All of these factors lead me to the conclusion that there is no basis for the defence of qualified privilege.

[25] I will say finally, because Mr. Wu’s statement of defence mentions freedom of speech, that our courts have repeatedly held that the constitutional freedom of expression does not protect communications which otherwise constitute the tort of defamation.

[26] For these reasons I conclude that there is no genuine issue requiring a trial that the statements made by Mr. Wu in his numerous posts on WeChat are defamatory and that Mr. Wu has not made out any defence to his publication of these statements. I therefore find him liable to Mr. Zhong for the tort of defamation and grant summary judgment to that effect.

Damages

[27] The plaintiff conceded that he had not sustained any measurable pecuniary losses. However, the plaintiff argues that the allegations against him were vicious and that the impact of the defendants’ posts affected him profoundly at the time, as well as his family. He seeks substantial general damages of $250,000 and punitive damages of $100,000.

[28] In simple terms, compensatory damages focus on the plaintiff’s actual loss. Punitive damages focus on the character of the defendant’s conduct.

[29] Compensatory damages in defamation serve:

(a) to provide consolation for personal distress and hurt;

(b) to repair any harm done to the plaintiff’s reputation; and

Raymond E Brown, Brown on Defamation, looseleaf 2 ed. (Toronto: Carswell, 1999) at s. 25.2.

[30] An award of compensation in a defamation action is required to serve one or more of these interlocking purposes. The successful plaintiff in a defamation action is entitled to recover, as general compensatory damages, an amount that will compensate for the wrong he has suffered. The award must:

(a) take account of the distress, hurt and humiliation which the defamatory publication has caused;

(b) compensate him for the damage to his reputation; and

[31] These distinct features apply to every defamation case, but the emphasis to be placed on each will vary from case to case. Sometimes, for example, there may be relatively little demonstrable damage to reputation, but serious emotional distress; on other occasions, the need for public vindication will predominate; in yet other cases the financial consequences of damage to the reputation of the individual may represent the most serious feature, Cairns v. Modi, [2012] EWCA Civ 1382 at paras 21 and 22, per Lord Neuberger CJ.

[32] The three purposes no doubt overlap considerably in reality and ensure that the amount of the verdict is the product of a mixture of inextricable conditions. Vindication looks to the attitude of others to the plaintiff; the sum awarded must be at least the minimum necessary to signal to the public the vindication of the plaintiff’s reputation, Carson v. John Fairfax & Sons Ltd. (1993), 113 Aust. LR 577 (H.C.) at p. 589

[33] The law of defamation protects a person’s reputation. A defamatory statement will be more injurious to someone with a good reputation. A plaintiff’s position and standing in the community are therefore relevant to calculating compensatory damages in a defamation action. In assessing damages, the court may take into consideration the plaintiff’s reputation, prominence and standing in the community and his or her injured feelings and mental suffering, Brown on Defamation, supra at s. 25.3(3)(a).

[34] Damages are presumed in defamation cases. It is worth emphasizing why that is so. The presumption arises by logical inference from the defamatory character of the publication, Brown on Defamation, supra, at s. 25.2.

[35] While actual financial loss may be proved, it is comparatively rare simply because evidence of financial loss is not generally available. Typically, it is unlikely that the plaintiff will be able to prove items of loss flowing from the defamatory publication. The impression left by a libel on the reader may never be known but may last a lifetime, Philip Lewis, Gatley on Libel and Slander 8th ed., (London: Sweet & Maxwell, 1981) at 9.2. Thus, the presumption of damage recognizes the importance but fragility of a good reputation and the reality that the harmful consequences of defamation are difficult to prove, much less quantify.

[36] In assessing the quantum of general damages, relevant considerations include the plaintiff’s position and standing, the nature and seriousness of the defamatory statements, the mode and extent of publication, the absence or refusal of any retraction or apology, the whole conduct and motive of the defendant from publication through judgment, and any evidence of aggravating or mitigating circumstances.

[37] Here, the evidence is that Mr. Zhong enjoys an excellent reputation. His reputation is important, as both a social worker and community leader. There is also evidence that Mr. Zhong and his family suffered stress and anxiety as a result of these posts. He suffered many sleepless nights. There was limited evidence that a few readers thought the less of Mr. Zhong after reading these posts but there is essentially no evidence about how many readers there actually were. WeChat Groups are capped at 500 members but there is no way of knowing how many members of Mr. Wu’s group or groups actually read the posts. There is no evidence that any of Mr. Zhong’s friends read the posts or caused additional embarrassment by discussing it with him.

[38] The posts were “up” from February to May 2019. The posts were removed after the injunction and, apart from one misleading reference to Mr. Wu having taken Mr. Zhong to court (rather than the other way around), there has been no repetition of any defamatory posts by Mr. Wu.

[39] Although I found Mr. Wu acted with malice, it was not among the more serious or pronounced forms of malice. Mr. Wu offered no apology. Mr. Wu is an ordinary person, a construction worker. He holds no position of status or public influence that would lend weight to the false statements he has made.

[40] There is no claim for income loss. Nor it there any evidence of actual reputational harm. For example:

there is no evidence the defamatory communications ever came up in any client or community meetings

Mr. Zhong has not lost any friendships and

there is no evidence anyone told Mr. Zhong that they no longer trust him because of the defamatory statements.

[41] Thus, of the three basic factors, there was personal distress and hurt but no evidence of medical or mental health issues or any effect on the plaintiff’s day-to-day life. There is no evidence of any harm to the plaintiff’s reputation (recognizing that damages are presumed). There is a need, given that the posts were defamatory and posted online for about four months, for vindication of the plaintiff’s reputation. I must keep in mind, however, that this judgement (finding Mr. Wu liable for making false statements about Mr. Zhong) is itself strong vindication of Mr. Zhong’s reputation in the community.

[42] Taking all of this into account I must conclude that the factors underpinning cases in which large damage awards of the kind sought by the plaintiff have been made, are not present here. In my view, an award of $35,000 is an appropriate award for general compensatory damages.

[43] In my view, this is not a case warranting punitive damages. The court’s disapproval of the defendant’s conduct (and the objective of deterrence) are sufficiently recognized by the compensatory award and my award as to costs.

[44] This is, however, a case for a permanent injunction, having regard to the defendant’s past conduct in refusing, until an injunction was ordered, to take down the posts and his persistent refusal to acknowledge the falsity of his statements and to make an appropriate apology. The defendant shall, therefore, be permanently prohibited from publishing defamatory statements regarding Mr. Zhong, on the Internet or by any other means.

[45] While the defendant’s conduct did not rise to a level warranting punitive damages, it certainly rose to the level of warranting an order for full indemnity costs. Mr. Wu declined the plaintiff’s invitation to take down the posts voluntarily and to make an apology. The plaintiff was put to needless expense to vindicate his reputation. I award full indemnity costs in the amount of $15,414.90.

Penny J.

Released: December 9, 2019

COURT FILE NO.: CV-19-618097

DATE: 20191209

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

XINSHENG ZHONG

Plaintiff

– and –

JIAN WU

Defendant

REASONS FOR JUDGMENT

Penny J.

Released: December 9, 2019

Zhong v. Wu, 2019 ONSC 7088

Case Summary

Overview

Background

Analysis

Summary Judgment

Defamation

Damages

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Financial Outcomes

Issues