Court File and Parties
COURT FILE NO.: 17-74826 DATE: 2020/01/08 COURT OF ONTARIO, SUPERIOR COURT OF JUSTICE
RE: SKAFCO LIMITED o/a ROBBIE’S ITALIAN RESTAURANT, HOUSSAM ZAGHLOUL, and NADA YAACOUB, Plaintiffs (Moving Parties)
AND:
MARWAN ABDALLA and NATIONAL CAPITOL PALESTINIAN CANADIAN CHAMBER OF COMMERCE, Defendants (Responding Parties)
BEFORE: Mr. Justice Calum MacLeod
COUNSEL: Mario Torres, Joseph Doris, for the Plaintiffs/Moving Parties Jeff G. Saikaley, for the Defendants/Responding Parties
HEARD: August 29, 2019
REASONS and decision
[1] This is a defamation action seeking damages for negative remarks published on social media by the defendant Abdalla. The plaintiffs submit that the facts are easily established by affidavit evidence and there are no genuine issues requiring a trial. They move for summary judgment. It is their submission that summary judgment is now routine in defamation actions and should be the preferred approach.
[2] The defendants resist the motion. While, in this case, the publication of negative comments can be readily established, the defendants contend that these arose in a situation where the plaintiffs had reneged on obligations owed to the defendant and the comments were made in good faith. They argue that defamation actions are seldom suited to summary judgment because of the nature of such cases and the unique role of the fact finding process. The impact of the words, the context, the availability of defences, allegations of malice and assessment of damages are said to require nuanced measurements of credibility and weighing of factors that can only be fairly assessed by means of a trial.
[3] These reasons address the availability of summary judgment in defamation actions and consider how Rule 20 of the Rules of Civil Procedure should be applied to the facts of this case. For the reasons that follow, I have concluded there is no general rule against summary judgment although there may well be considerations unique to this type of case.
[4] Summary judgment is granted in favour of the plaintiffs but the damages are on a modest scale when measured against their demands.
Background
[5] The individual plaintiffs are the owners of the corporation operating as Robbie’s Italian Restaurant. The defendant Abdalla is one of three directors of the corporate defendant which is often referred to as “PalCan”. He is a founder and principal organizer of the Palestinian Festival operated by PalCan and held annually in Ottawa since 2014.
[6] The festival is one of the weekend events held in Marion Dewar Plaza at Ottawa City Hall over the summer months. It is intended to “recognize and celebrate the history, existence, integration and contributions of the Palestinian people in Canada” and showcases Palestinian language, music, fashion, dance and cuisine.
[7] Robbie’s was one of the main sponsors of the 2017 Palestinian festival but also an exhibitor and the operator of a food tent. A dispute arose about the amount of money owed by Robbie’s to the festival as the result of the sponsorship and the food tent. The festival was facing a financial shortfall and it was one of Mr. Abdalla’s roles to find the funding.
[8] The basis of the dispute seems to have been disagreement about whether Robbie’s various roles and the funds pledged or owed in each role overlapped or were separate. The festival claimed that Robbie’s owed $10,000.00 for sponsorship, $11,500.00 for the right to operate the food tent and $6,899.03 for equipment and set up costs. Robbie’s had paid only $6,500.00 so the festival claimed it was owed an additional $21,899.03. The plaintiffs had a different version of events, claiming that the festival ran short of funds and asked various parties for voluntary contributions to the shortfall. The plaintiffs denied that Robbie’s was contractually obligated to pay the amount demanded by the defendants. Robbie’s also claimed that the festival was in breach of its own contractual obligations.
[9] PalCan sued the plaintiffs in Small Claims Court. (Action no. 17-146900). That action is relevant because it resulted in certain judicial findings about the amount owing. A trial took place in November of 2018 and a decision was released on November 22 of that year.
[10] Deputy Judge Dwoskin ruled that the amount owed to the defendant by the corporate plaintiff was $10,000 and not the $21,899.03 claimed by the defendant. No liability was found on behalf of the individual owners of the corporation. In short, it has been judicially determined that Robbie’s did not owe the almost $22,000.00 claimed by PalCan and instead owed only $10,000.00.
[11] That court decision is dispositive as to the amount that was legally owing at the time of the trial and by which party. The decision appears to be based primarily on an agreement reached at a meeting on September 9th, 2017 at which the Deputy Judge found Mr. Zaghloul had agreed that Robbie’s would pay $10,000.00 in addition to the $6,500.00 it had already paid. Although there is a finding that Mr. Abdalla was mistaken in his understanding of the agreements between the parties, there was no reason for the Deputy Judge to explore the meaning of the original agreements or the relationship between the parties. In addition, Robbie’s had advanced a counterclaim which was discontinued at the trial. There was no determination about the merits or bona fides of such a claim.
[12] The present action is not concerned with the debt as such. It is a defamation action commenced by the plaintiffs in December of 2017 shortly after the Small Claims Court action was started but before the trial of that action. In this action, the plaintiffs allege that Mr. Abdalla in his capacity as a director and agent of PalCan launched a campaign to discredit the plaintiffs in the Ottawa middle eastern community by attacking their character on social media and elsewhere. It is alleged that the defendant has relentlessly attacked the character of Mr. Zaghloul, his family and business. As he did so in his capacity as a director of PalCan and organizer of the festival using PalCan social media accounts, the plaintiffs also seek damages against PalCan.
[13] The negative messaging was posted by electronic means but unlike many cases of internet defamation, in this case there is little difficulty in proving what messages were published and by whom. The affidavit evidence is summarized at Tab 3 of the plaintiffs’ compendium and includes the following:
- On September 10, 2017, the day after the agreement in which the plaintiff had agreed to pay $10,000.00 the defendant posted in the festival’s WhatsApp group. The words included “What happened today did not withhold the integrity and principle of what we all do and give to the festival. … The compromise made for someone who failed to run his business, left us short over $13,000.00 without him acknowledging his wrongdoing financially or morally.” The posting went on to imply that the plaintiff had “presented documents of loss” that were “absurd” and “cried a bit” and “Hussam took advantage of the trust”. The posting encouraged others to denounce the plaintiffs on social media. “Social media stands to be the strongest element of exposure and so should be the course”.
- On September 12, 2017 the defendant authored a communication stating that Robbie’s had broken a promise to hand over funds owed to the festival and caused a shortfall of $40,000. “Up till late hours of last night robbie’s have not made good an any promise to hand over the funds owed to the festival, those funds are trust funds that are owed to suppliers and providers of the festival. As we stand today and due to robbie’s default we are in the negative for nearly $40,000 and most importantly stand to lose our credibility …”
- On September 18, 2017, Mr. Abdalla posted a comment under a Facebook posting advertising a Lebanese Film Festival and showing Robbie’s as a sponsor. Mr. Abdalla posted “A word of caution to all: Robbie’s did not pay the festival the money he’s owed which is nearly $22,000 of trust funds, he was trusted and betrayed the trust, we all should be cautious when dealing with them.”
- On the same day a message was sent identifying Robbie’s as owned by Houssam Zaghloul and Nada Yaacoub and that they had refused to pay the amount owed to the festival or the lesser amount mediated “by many”.
- Also on September 18, 2017 a picture of the plaintiffs as owners of Robbie’s was posted to the Facebook page of a prominent photographer. A comment was posted by Mr Abdalla: “You have not paid the Festival the money you owe Hussam and Nada, you betrayed the trust we gave you, when will you honour the commitment you made and pay the $22,000 owed by you.
- On September 25, 2017 the defendants posted that although many generous donors had assisted, the festival still had a $33,000 shortfall, “ most is owed by (Robbies Husam and Nara zaghloul) who has made repeated promises to pay and never did”. It was also suggested that the sixty people in the WhatsApp group should donate money to cover the shortfall.
- On September 27, 2017 another posting under a photograph on Facebook stated “Honesty is a color chosen by one’s decency. Nada and Hussam refuses to pay the $22,000 debt they owe to a non-profit organization, a community that trusted them, stood by them and lifted them, today they take pride of there deceptions. We hope others will see there true color of the Zhaghlouls.”
- On November 2, 2017 in the context of reporting details of the Small Claims court action, the defendants stated that Mr. Zaghloul “deleted or falsified” evidence. The allegation was repeated on November 3, 2017 and the defendants encouraged the recipients of the message to sue Mr. Zaghloul.
- On November 30, 2017 there was a Facebook post concerning a citizenship ceremony in which Nada and Houssam Zaghloul became citizens. In a comment, under the posting the defendant stated, “wouldn’t you think that Canada should evaluate people’s ethics prior to granting them a citizenship”.
- On June 19, 2018, the Mayor of Ottawa tweeted congratulations to Robbie’s Italian Restaurant for 30 years in business. The plaintiff posted a comment that suggested the mayor was misled because the couple had only operated Robbie’s for 2 years and “indebted to a non-profit organization for $22,000” while posting the file number of the Small Claims action.
[14] There is no serious issue that the listed incidents were words published by the defendant Abdalla. Some of these postings clearly assert that the plaintiffs are dishonourable, dishonest and untrustworthy. Other postings are less direct but are capable of bearing these inferences. It does not necessarily follow that summary judgment is available. Assessment of whether or not words are defamatory and the impact of those words on a plaintiff’s reputation is often complex and contextual. In addition, proving defamation is only the first step. Most of the nuances in a defamation action are in relation to defences.
The Law of Defamation
[15] In the law of Ontario, a plaintiff in a defamation proceeding is required to prove only three things. Those are firstly 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. Words implying dishonesty or immorality easily meet this test. Secondly, the plaintiff must show that the words referred to the plaintiff. This is not difficult if the plaintiff is referred to by name. Thirdly, the plaintiff must prove that the words were communicated to at least one person other than the plaintiff. [^3]
[16] If these elements are established on a balance of probabilities, then at least in libel cases, falsity and damage are presumed. Liability is strict insofar as it is not necessary to prove intention. [^4] If the elements of defamation are proven, liability is established unless the defendant can rely on one of the recognized defences. At this point, the onus shifts to the defence.
[17] There are seven recognized defences to a defamation action. In each case, assuming the plaintiff has established the three preconditions to liability, the onus of proving the applicability of the defence lies upon the defendants. The defences are “truth” or “justification”, “immunity” or “absolute privilege”, “qualified privilege”, “responsible communication in mass media” or “responsible journalism”, “reportage” or “reporting on matters of public interest”, “fair comment”, “consent” and, “statutory limitations”. In Ontario the latter may be found in the Libel and Slander Act and include limitations on damages if there has been an apology or retraction as well as notice requirements and a limitation period. [^6]
[18] Each of these defences has its own unique requirements and in some cases are overlapping. For example the defence of fair comment requires that the words published are on a matter of public interest, based on fact, recognizable as statements of opinion, fairly made insofar as they represent an opinion that could be honestly held on the proven facts, and made without malice. [^7] Each of these requirements are also subject to nuanced meaning found in the jurisprudence. For example, defining public interest is a tricky question and will not insulate a defendant from comments regarding business or private affairs. The public must have a genuine stake in knowing about the matter published. [^8] Similarly, recklessness or carelessness about the truth of the underlying facts may nullify the defence of fair comment and may be evidence of malice. [^9] In some circumstances, malice is implied.
[19] Although damages are presumed once defamation has been proven, the plaintiff may be entitled to different categories of damages depending on the circumstances. General damages are always available if defamation is established and need not be nominal. As in other torts, general damages are for non pecuniary loss but damages in defamation cases have been found to be significantly different from general damages in personal injury cases.
[20] Damages for defamation are assessed as the amount necessary under all of the circumstances to compensate the plaintiff for loss of reputation and injury to feelings but also to provide consolation and public vindication. The objective is to compensate for the loss and insofar as an award of damages can do, to restore the plaintiffs’ reputation in the community where the plaintiff was defamed. [^10] If the plaintiff seeks substantial general damages, as in the case at bar, the context, the audience and the impact of the defamatory messages must be calculated to arrive at a just result. For example, damages may be increased where the target audience has been selected to maximize damage to reputation. [^11] Corporations cannot suffer hurt feelings so the assessment of damages for a corporation is different than it is for an individual. [^12]
[21] The plaintiff may also recover actual or special damages if the plaintiff can prove specific losses and may be awarded aggravated damages if the plaintiff proves malice. Punitive damages are also available if the misconduct of the defendant is deemed to be substantial and the usual tests for awarding punitive damages are met. [^13] In appropriate cases, the plaintiff may also obtain an injunction to halt continuing publication of the defamatory material or to restrain future publication. [^14]
Should Summary Judgment be Available in Defamation Cases?
[22] Rule 20 of the Rules of Civil Procedure provides that summary judgment should be granted if, and only if, there is no genuine issue requiring a trial. The rule also provides various tools to shorten and focus the action even if complete summary judgment is not appropriate. It is important to understand the objective of the rule in context. Summary judgment is a tool to enhance access to justice by ensuring that cases are adjudicated in the most appropriate and cost-effective manner. It is not a tool for deciding cases unjustly or depriving parties of their rights in litigation. It is simply that the full forensic apparatus of a trial is not required for every issue in every case. The court has a responsibility to ensure that judicial and court resources are appropriately and proportionally used to achieve the ends of justice. [^15]
[23] Defamation cases have a certain mystique and have traditionally been tried before juries. [^16] They are also burdened with complexity that has long been the subject of criticism and calls for reform. [^17] It has been recognized that the common law evolved largely to balance the interests of public figures and traditional media and that aspects of defamation law such as the distinction between libel and slander may be ill equipped to deal with defamation by means of electronic and social media. [^18] In Canadian law, the Supreme Court has recognized the protection of individual reputation as a quasi-constitutional value that must be balanced against the Charter protected value of freedom of speech. [^19] The need for a calibrated balancing exercise and the need to measure the impact of defamatory speech against the harm experienced by the plaintiff in the local community raises the question as to whether or not defamation cases ever lend themselves to summary judgment.
[24] The plaintiffs argue in the affirmative. They argue that summary judgment is an important tool to make defamation law more nimble and that given the presumptions attributable to defamatory statements, summary judgment is becoming the norm rather than the exception. The defendants argue the opposite. Specifically, they urge the court that questions such as the manner in which the statements would be viewed in the Ottawa middle eastern community, the conduct of the plaintiffs themselves, whether there was any impact on the business or reputation of Robbie’s or its owners are nuanced findings which require the forensic mechanism of a trial.
[25] Before turning to the evidence in this case and examining whether or not it can support summary judgment, it is necessary to consider the question posed at the outset of these reasons. Is there something about the nature of defamation actions which makes summary judgment inappropriate?
[26] Support for this proposition may be found in a decision of the Court of Appeal released in 2012. In Baglow v. Smith, the Court of Appeal overturned summary judgment that had been granted by Annis J. in this court and appeared to take the view that defamation actions will rarely be appropriate for determination on a motion. The following appears at paragraph 24. [^20]
24 As the motion judge readily acknowledged, summary judgment has rarely been granted in defamation cases, probably because the courts have recognized that the threshold over which a statement must pass in order to be capable of being defamatory of a plaintiff is relatively low: see Cherneskey v. Armadale Publishers Ltd. (1978), [1979] 1 S.C.R. 1067 (S.C.C.), at p. 1095, and because the question whether a statement is in fact defamatory has long been considered the purview of a trier of fact. Whether impugned words are defamatory of an individual in fact is the type of decision better made on the basis of a full factual record with cross-examinations and possibly expert testimony. Indeed, until the Judicature Act, R.S.O. 1980, c. 223 was replaced by the Courts of Justice Act S.O. 1984, c. 11, actions for libel and slander were among a small group of claims that the law required to be tried by a jury, unless the parties consented to waive such a trial: see Judicature Act, s. 57.
[27] There are a number of observations that can be made about this decision. Firstly, Blair JA does not definitively state that summary judgment is never appropriate in defamation cases. Secondly, the ruling came after the Court of Appeal had released its decision in Combined Air and before the Supreme Court of Canada released its decision in Hryniak. The Court was therefore applying the “full appreciation” test which was subsequently found not to be the correct test. [^21] Finally, the decision is based in part on the fact that it involved a novel question of law, that is whether “anything goes” in the world of free-wheeling debate in the internet blogosphere. The court relied in part on its previous jurisprudence that novel questions of law should not be decided without a full factual record and possibly expert evidence. [^22]
[28] There is therefore some question as to whether or not Baglow v. Smith remains good law and in any event whether its application is as broad as the defendant suggests. It must be said however that it has not been overturned nor has the Court of Appeal revisited the question. The Court of Appeal has also recently cautioned that “the culture shift mandated by the reasons in Hryniak is not as dramatic or radical as the motion judge would have it” … “summary judgment remains the exception, not the rule”. [^23] That decision was in the context of partial summary judgment but it sounds a note of caution and argues against the idea that summary judgment is the default mode of adjudication.
[29] There are in any event important principles about defamation actions discussed in Baglow v. Smith which also find support in decisions of the Supreme Court of Canada. Firstly, it is relatively easy to establish that words were published and by whom. That is a straight factual question. The issue of whether or not words are defamatory, however, involves an objective test. It is a question reserved to the triers of fact who must assess the significance of the words in the particular community where the words were published. While defamatory meaning may be obvious from the words themselves, the court may also “take into consideration all the circumstances of the case, including any reasonable implications the words may bear, the context in which the words are used, the audience to whom they were published and the manner in which they were presented.” [^24]
[30] The assessment of damages is also a very different exercise in defamation actions than it is in other types of litigation. The trier of fact may consider the conduct of the plaintiff as well as that of the defendant, the position and standing of the plaintiff in the community, the nature of the defamation, the absence or refusal of an apology, and the conduct of the defendant throughout the proceedings including conduct during the trial. [^25] Similarly, it has been held that malice is a finding that may require consideration of circumstances outside the four corners of the publication and may require a trial. [^26]
[31] In part the law enunciated in these decisions as well as the statutory provisions such as s. 108 of the Courts of Justice Act [^27] reflect special rules and considerations which have evolved from the traditional reliance upon juries in defamation actions.
[32] There is an important review of the historical relationship of defamation actions with trial by jury and the current state of the law in Ontario at paras 127 -135 of Grant v. Torstar. In summary, until it was replaced by the Courts of Justice Act in 1984, s. 57 of the Judicature Act provided that the default method of trial for defamation actions was trial by jury. The requirement that defamation actions be tried by juries has been removed but the right to trial by jury and the right of the jury to render a general verdict has been preserved.
[33] As the Supreme Court makes clear, these special rules for jury trials not only make the determination of fact and law a complex and intertwined exercise, it also imposes limits on the directions which the trier of law may impose on the triers of fact. The right to trial by jury remains carefully guarded and there are special rules which limit the direction judges may give to those juries. [^28] There remains an important division between the duties and prerogatives of the triers of fact and those of the judge as the arbiter of the law. It is legitimate to question whether the nuanced analysis contemplated by Grant v. Torstar can properly take place on a written record.
[34] This particular case is not a jury trial because neither party served a jury notice. I consider that the presence or absence of a jury notice or other procedural decisions such as proceeding under Rule 76 should carry some weight in the analysis of whether summary judgment is appropriate. It might, for example factor into a proportionality analysis when applying the third factor at paragraph 49 of Hryniak [^29]. It should not be dispositive. The presence or absence of a jury notice should not lead automatically to a different approach to summary judgment.
[35] The weight of authority suggests that Rule 20 and trial are separate processes. The analysis under Rule 20 does not change simply because there is a jury notice. To put this another way, just because trial by jury is an option, and the right to have the trial heard by a jury is a substantive right, it does not follow that a trial must be held. [^30]
[36] If summary judgment decisions are to be applied consistently then consideration of what is the province of the trier of fact should form part of the analysis with or without a jury notice. The question is whether it is possible to determine the facts justly without a trial and part of that analysis may be the unique questions and discretion reserved to the trier of fact in defamation actions. In this case, for example, it is the contention of the defendants that the nuanced findings of fact and credibility required to fairly adjudicate this matter cannot be done on a paper record. While I agree that the jurisprudence suggests that the role of the trier of fact must be jealously guarded, it does not follow that a trial is necessary in every case.
[37] The notion that findings of fact and assessment of credibility cannot be fairly adjudicated on the basis of affidavit evidence was rejected by the Rules Committee when it enacted the amendments to Rule 20. The specific authority provided by Rule 20.04 (2.1) and (2.2) was added to overcome impediments to summary judgment previously found in the jurisprudence. More importantly, the conservative approach to summary judgment was roundly rejected by the Supreme Court of Canada in Hryniak v. Mauldin. [^31] As discussed above, the Supreme Court specifically rejected the “full appreciation” test enunciated by the Ontario Court of Appeal and directed that summary judgment rules had evolved “from highly restricted tools used to weed out clearly unmeritorious claims or defences to their current status as a legitimate alternative means for adjudicating and resolving legal disputes”.
[38] The court added that “summary judgment motions must be granted whenever there is no genuine issue requiring a trial” and then gave the following direction:
“[49] There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.”
“[50] These principles are interconnected and all speak to whether summary judgment will provide a fair and just adjudication. When a summary judgment motion allows the judge to find the necessary facts and resolve the dispute, proceeding to trial would generally not be proportionate, timely or cost effective. Similarly, a process that does not give a judge confidence in her conclusions can never be the proportionate way to resolve a dispute. It bears reiterating that the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute.”
“[51] Often, concerns about credibility or clarification of the evidence can be addressed by calling oral evidence on the motion itself. However, there may be cases where, given the nature of the issues and the evidence required, the judge cannot make the necessary findings of fact, or apply the legal principles to reach a just and fair determination.” [^32]
[39] Significantly, the Supreme Court appears to reject the idea that there are cases inappropriate for summary judgment. [^33] It will be just to give judgment without a trial if the material before the court and the nature of the issues permits the judge to make findings of fact and apply the relevant legal principles with confidence. [^34]
[40] The critical first question is always whether it is reasonable and just to dispose of the issues based on affidavit evidence. If there are genuine issues of credibility, it may still be possible to resolve those questions in this forum by means of a mini-trial under Rule 20.04 (2.2). If a mini-trial does not appear to be useful or there are genuine issues requiring a trial for reasons other than credibility, it is important to remember that the Rule contains various other tools to prune, focus or streamline the litigation. [^35] In Hryniak, the Supreme Court has mandated that “ summary judgment rules must be interpreted broadly, favouring proportionality and fair access to the affordable, timely and just adjudication of claims”. [^36] As noted above, however, the Court of Appeal has rejected the idea that summary judgment is now the preferred approach and trials are a last resort. [^37]
[41] The plaintiffs urge me to find precisely that. They argue that summary judgment in defamation matters is now routine and that Baglow v. Smith is no longer good law. In support of this proposition, they cite numerous cases in which summary judgment has been granted. I do not intend to review each and every case contained in a combined seven volumes of authorities filed on this motion but I will make a few observations and attempt to summarize some principles.
[42] Firstly, it is important to recognize that there are different types of summary judgment motions. Rule 20.04 (2), for example, imposes different tests if the parties agree to the use of Rule 20 than if they are disputing that summary judgment is appropriate. [^38] In addition, a summary judgment motion brought by a defendant to dismiss an action for lack of proof may be significantly different than a motion by a plaintiff seeking judgment in its favour. The latter will look quite different if the action is undefended. [^39] In some cases, the inference permitted by Rule 20.02 (the best foot forward rule) will apply and in others it will not. A summary judgment motion based on a limitation period or to strike a claim or defence for technical reasons may be different again. [^40] In short, it is dangerous to generalize about summary judgment. To some degree the applicability of summary judgment requires a case by case analysis.
[43] Secondly, while there are a number of cases in which summary judgment has been granted in defamation actions and in which the motions judge addressed the test for summary judgment, it does not appear that the question I am now concerned with was fully argued. Nor does it appear that the Baglow v. Smith summary judgment appeal was brought to the attention of the motions judges in any of the cases cited. [^41]
[44] The caselaw does not demonstrate that summary judgment is now to be considered routine in defamation cases nor that it is the preferred procedure for such actions. On the other hand, it does demonstrate that summary judgment has been granted in a number of cases both before and after Hryniak was decided when the motions judge has been able to conclude that there is no genuine issue and the affidavit evidence is sufficient.
[45] I conclude that summary judgment is available in defamation actions but not in all cases. The analysis of whether or not a trial is necessary will be dependent on the evidence available to the motions judge, the matters that are in issue and of course the position taken by the parties having regard to the particularities of defamation law and procedure. In that regard, credibility assessment may not be the only concern as the court will also have to consider whether questions such as the defamatory nature of the published words, the impact of those words in the community and the assessment of damages can be properly undertaken on a paper record.
[46] While a jury notice is not a bar to summary judgment, proportionality is always a consideration. Accordingly, the absence of a jury notice, the amount in issue and whether or not the parties have already opted for a summary procedure such as that provided in Rule 76 may form part of the analysis. On the other hand, it would exaggerate the importance of this factor to state that summary judgment should be more readily available in a judge alone trial. The question remains the same. Is a trial necessary to adjudicate the matter and to reach a just result?
Analysis
[47] On the facts of this case, it may readily be established that at least some of the words published by the defendant Marwan Abdalla were defamatory, referred to the plaintiffs and were communicated to others. In the absence of a successful defence, the plaintiff would be entitled to damages. If those damages can be assessed appropriately and if it can be shown that none of the defences can succeed, there is no reason in principle why summary judgment should not be granted against Mr. Abdalla.
[48] The question of vicarious liability can be readily determined without a trial. There is no doubt that Mr. Abdalla was acting in his capacity as a director of PalCan and the organizer of the festival. His objective was to collect funds owing to the festival and to avoid a financial shortfall. He used social media platforms such as the festival’s WhatsApp account and distribution list. The actions of Mr. Abdalla have never been repudiated by PalCan. Moreover, the defendants have a single defence position, a joint statement of defence and there are no crossclaims. They have not pleaded that PalCan is not liable for the acts of Mr. Abdalla. I would readily find that if Mr. Abdalla is liable, PalCan has joint and several liability for the defamatory postings.
[49] With respect to assessment of damages, notwithstanding that damages must be assessed in a different manner than in other types of cases, there is no general principle that damages in defamation cannot be assessed without oral evidence. It should be noted that in Barrick Gold the Court of Appeal had no difficulty assessing and awarding general and punitive damages at the request of the plaintiff. [^42] Similarly, in the undefended actions or in any of the other actions in which summary judgment has been granted to a plaintiff, the court has been able to assess damages.
[50] In this case, the plaintiffs seek summary judgment and ask the court to fix the damages. While the plaintiffs are seeking general, aggravated and punitive damages, the plaintiffs are not in a position to complain if the court determines that summary judgment is appropriate and fixes those damages in a summary fashion on the available evidence. It is the defendants who resist judgment. In the view of the defendants, a detailed damage assessment in which credibility of all witnesses is assessed and the actual impact of the impugned statements is carefully examined, would lead to the conclusion that any damages should be nominal.
[51] It is not be necessary to have a trial to fairly address that argument. The plaintiffs were cross examined. There is no evidence that the reputation of Robbie’s Italian Restaurant depends on the standing of the owners in the middle eastern community. In fact, it was admitted that Robbie’s was successful in 2017 and is more successful today. Witnesses were also cross examined. No one who was proffered as a witness on behalf of the plaintiffs felt that the reputation of the individual defendants had been diminished in their minds. This does not mean the plaintiffs are disentitled to damages, because in defamation actions damages are presumed, but it may demonstrate that there is little basis for a significant damages award.
[52] If there is a need for a trial, it will primarily be necessary over the question of malice, the bona fides of Mr. Abdalla’s belief that the plaintiffs were reneging on solemn promises, the number of people who actually would have seen or read the impugned postings and which of those postings bears a defamatory meaning when read in context. These issues are relevant to the question of any significant damages and to the availability of defences. But the evidence before me demonstrates that none of the pleaded defences can succeed.
[53] The defendants have pleaded only the defences of “truth”, absence of defamatory meaning, lack of malice, “fair comment”, “justification under section 22 of the Libel and Slander Act”, “fair comment” and ss. 23 and 24 of the Act. In this case, I am of the view that the pleaded defences can be assessed on the record before me.
[54] It appears to be true that Robbie’s had not paid a debt it owed to the festival and the plaintiffs failed to pay the reduced amount agreed to at the September meeting. Mr. Abdalla may well have had a basis for believing that the plaintiffs were reneging on greater promises and contractual obligations even though he was ultimately found to be in error in the Small Claims Court.
[55] Truth would be a defence to advising the festival supporters and donors that Robbie’s was indebted to the festival and the plaintiffs had not paid what they had promised. It could not be a defence to advising them that the festival owed $40,000 as a result of Robbie’s default. There was never a basis for believing that was true. At most, it was believed Robbie’s owed $22,000.00.
[56] The defendants cannot rely upon truth or justification for alleging that the plaintiffs were dishonest, could not run a business, were untrustworthy and dishonourable. Those are either factual assertions that cannot be shown to be true [^43] or they are comments or expressions of opinion. In the latter case the defendants would have to rely upon the defence of fair comment.
[57] For the defence of fair comment to apply, it must meet specific tests. Firstly, the comment must be on a matter of public interest. Secondly, the comment must be based on fact. Thirdly, the comment must be recognizable as opinion and must not purport to be a fact. Fourthly, the comment must be one that a person could honestly express on the proven facts. Finally, if the comment was primarily motivated by malice then it cannot be “fair”. If the comment was made out of spite, ill will, with intent to injure or without any honest belief in the truth of the statement then malice will be established and the defence of fair comment will fail. [^44]
[58] Assuming the comments were made without malice to donors and supporters of the festival who were interested in its financial success, the comments about why the festival was in debt could qualify as a matter of public interest. Fair comment could apply to the statement that promises made by Robbie’s should not be trusted as that is an opinion that could reasonably be held based on the underlying facts. The same cannot be said of the comments broadly attacking the plaintiffs’ honesty and integrity. Still less could it possibly apply to the suggestion that the plaintiffs do not deserve citizenship or to other public statements made on social media. In particular the Facebook comments cannot be saved by this defence on these facts.
[59] The evidence supports a finding that Mr. Abdalla was motivated primarily by the imperative of salvaging the finances of the festival. Whether, as the plaintiffs suggest, the festival had a shortfall which had to be made up by pressuring donors or, as the defendants suggest, the shortfall was primarily caused by Robbie’s unexpectedly paying only a portion of what the festival anticipated, is not the issue. I accept that Mr. Abdalla believed he was correct and Robbie’s was reneging on a number of promises. Motive as such is irrelevant however. Mr. Abdalla’s response was to pressure the plaintiffs by embarrassing them on the one hand and to encourage donors to make up the shortfall on the other. He should have exercised more restraint particularly since he knew the matter was before the Small Claims Court and the plaintiffs had defended. The lack of restraint in his criticism, carelessness about accuracy, and wholesale attack on character are not fair comment and raise in inference of malice.
[60] The defendants also rely on ss. 22 – 24 of the Libel and Slander Act. Those sections read as follows:
Justification
22 In an action for libel or slander for words containing two or more distinct charges against the plaintiff, a defence of justification shall not fail by reason only that the truth of every charge is not proved if the words not proved to be true do not materially injure the plaintiff’s reputation having regard to the truth of the remaining charges. R.S.O. 1990, c. L.12, s. 22.
Fair comment
23 In an action for libel or slander for words consisting partly of allegations of fact and partly of expression of opinion, a defence of fair comment shall not fail by reason only that the truth of every allegation of fact is not proved if the expression of opinion is fair comment having regard to such of the facts alleged or referred to in the words complained of as are proved. R.S.O. 1990, c. L.12, s. 23.
Fair comment
24 Where the defendant published defamatory matter that is an opinion expressed by another person, a defence of fair comment by the defendant shall not fail for the reason only that the defendant or the person who expressed the opinion, or both, did not hold the opinion, if a person could honestly hold the opinion. R.S.O. 1990, c. L.12, s. 24.
[61] These in effect are saving provisions which avoid an overly precise and technical approach to the defences of justification and fair comment. If a series of allegations are made against a plaintiff and most of them are true, s. 22 provides that the plaintiff cannot recover damages for untrue statements if they do not damage the plaintiff’s reputation materially more than the true statements. Section 23 takes a similar approach to fair comment. If the comment is fair based on the truth of certain allegations, the defence will not fail only because one or more of the other allegations cannot be proven. Section 24 simply affirms that the test for fair comment is an objective one. It does not otherwise affect the factors established in WIC Radio. [^45]
[62] I conclude that on the evidence before me on the facts of this case, no good purpose is served by a trial. The plaintiffs were defamed by the publication of attacks on their character. Neither the defences of truth (justification) or fair comment are available to the defendants. The statutory overlay does not assist. Summary judgment is appropriate at least on liability.
Assessment of Damages
[63] If liability has been established, then mere difficulty in assessing the damages will not be a bar to summary judgment. Rule 20.04 (3) specifically permits the court to order trial of that issue or to direct a reference to determine the damages. This is an outcome specifically mandated by the Rule and a permissible outcome of a motion for summary judgment. [^46]
[64] I had contemplated making an order under Rule 20.04 had I been persuaded of the need to conduct the damages assessment with the benefit of oral evidence. Other options exist under Rule 20.05. For example, had I refused summary judgment, I could have made an order specifying that only certain facts were in dispute and defining the issues to be tried. Rule 20.05 (2) includes a basket of tools to streamline and focus trials.
[65] As discussed above, one of the considerations in the exercise of discretion under the summary judgment rule is proportionality. As also discussed, it is the plaintiffs who ask for summary judgment and the defendants who resist it, largely on the basis that it would be unfair to assess significant damages against the defendant without a trial. [^47] Despite opposing the motion, the defendants put forward important evidence and argued persuasively against a significant damages award. On the view I take of this matter, the damages are limited in scope and can be assessed fairly on the affidavit evidence.
[66] I mentioned above that Robbie’s as a corporation cannot have hurt feelings and has not sustained any measurable business loss. In any event, reading the comments in context, the remarks about the untrustworthy nature of the plaintiffs are primarily directed at the owners and not the corporation itself. “Robbie’s is largely used as shorthand for Houssam Yagloul and his wife, Nada Yaacoub. Mr. Abdalla in fact was at pains to ensure that his audience knew who the owners were. I conclude that while Robbie’s was defamed by the suggestion that it was not a well run business and an unreliable business partner, the audience for the comments posted to the WhatsApp group was relatively small. The posting to the Facebook page of the Lebanese Film Festival had a much larger audience. Despite this, any damages suffered by the corporation were nominal and a nominal award is appropriate.
[67] The assault on the character of the individual plaintiffs and on Mr. Yagloul in particular was more sustained and potentially damaging to their reputations. In particular the comments posted to Facebook that they were not worthy of citizenship appear spiteful. Despite this, the evidence does not establish significant damage to the plaintiffs’ reputations. The Facebook postings were transitory and were deleted. The WhatsApp posting was by and large to a group of 60 people who may be regarded as festival insiders. In addition, although the plaintiffs describe these publications as a sustained attack on their character, there is no evidence that these comments continued to be posted after the Small Claims Court decision with one exception.
[68] I am prepared to award damages to the individual plaintiffs which are more than nominal but would be well within the Small Claims Court limits. As part of that award, the plaintiffs are entitled to a damages to assuage their hurt feelings The plaintiffs gave evidence of hurt feelings which would have been foreseeable from the nature of the insults but there is no evidence of significant mental distress beyond what would flow naturally from claims of dishonesty and lack of honour. There was, for example no psychiatric evidence. There is no basis to award aggravated damages beyond the general damages award. [^48]
[69] This is not a case for punitive damages. The plaintiffs are vindicated by an award of damages in their favour. Mr. Abdalla and through him the festival have been sanctioned for exaggerating the truth and attempting to pressure the plaintiffs by defaming them. This is sufficient condemnation in the context of what was ultimately a minor contractual dispute. The actions of the defendants were wrongful but they are not so shocking, reprehensible or flagrant that they require additional condemnation. [^49]
[70] In summary, there are procedures available to the court for a detailed assessment of damages if significant damages are contemplated and if it appears inappropriate or unjust to assess those damages on the basis of the affidavit evidence. That is not the case here.
[71] The plaintiff seeks summary judgment including the quantification of damages. The evidence put forward by the plaintiff does not justify either aggravated or punitive damages. What is appropriate in this case is a relatively modest award of damages having regard to the nature of the defamatory remarks, the context in which they were made and the partial vindication that has already taken place in Small Claims Court. [^50]
[72] I assess the damages against the defendants jointly and severally in favour of each of the plaintffs as follows:
a) In favour of the corporate defendant, the sum of $1,000.00; b) In favour of the plaintiff, Houssam Yagloul, $8,000.00; and c) In favour of the plaintiff, Nada Yacoub, $6,000.00.
[73] This is not a case for a permanent injunction. The evidence does not support the allegation that the defamation is ongoing nor that there is a risk of Mr. Abdalla continuing to defame the plaintiffs on the internet. I have no doubt that damages are an adequate remedy and will also discourage further publication or republication of defamatory statements. The truth of the matters underlying those allegations were established in the Small Claims Court and are apparent from these reasons.
Costs
[74] I encourage the parties to consider the question of costs and I encourage counsel to seek agreement on the matter. I do not know if there were offers to settle but those of course should form part of that discussion. I have no doubt there are significant issues in relation to the motion and to the action as a whole.
[75] The volume of material filed in connection with the motion was extraordinary. The plaintiffs filed 11 volumes of motion record and five volumes of authorities. The action itself was well advanced. It has been before the court since 2017.
[76] Counsel may arrange a date through the trial coordinator to speak to costs if they are unable to resolve the matter within the next 30 days.
Mr. Justice Calum MacLeod Date: January 8, 2020
Footnotes
[^3]: See Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640 @ para 28 [^4]: See Grant v. Torstar Corp., supra, para. 29 [^6]: RSO 1990, c. L.12 as amended [^7]: Halsbury’s, supra @ p. 99 [^8]: Grant v. Torstar, supra, @ para 101 - 105 [^9]: Hill v. Church of Scientology, [1995] 2 SCR 1130 @ para. 145 [^10]: Hill v. Church of Scientology, supra, paras 168 – 173 and 182 - 183 [^11]: See 122164 Canada Ltd (cob New York Fries) v. C.M. Takacs Holdings Corp., 2012 ONSC 6338 [^12]: See Walker v. CFTO, (1987), 59 OR (2d) 104, 37 DLR (4th) 224 (Ont. CA) [^13]: See Downard, Peter, Halsbury’s Laws of Canada, 1st Edition, Defamation, 2018 Reissue, 2018, Lexis Nexis, Toronto @ p. 96 [^14]: See Barrick Gold v. Lopehandia, (2004), 71 OR (3d) 416, 239 DLR (4th) 577 (Ont.CA) [^15]: Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 SCR 87 [^16]: See report of the Honourable Coulter Osborne, Civil Justice Reform Project, p. 90, available on line at: https://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/cjrp/090_civil.php [^17]: See for example, Law Commission of Ontario, Defamation Law in the Internet Age, Toronto, 2017 also available online at: https://www.lco-cdo.org/en/our-current-projects/defamation-law-in-the-internet-age/consultation-paper [^18]: See Haaretz.com v. Goldhar, 2018 SCC 28, [2018] 2 SCR 3 which contains five sets of reasons including a dissent by 1/3 of the panel. [^19]: Éditions Écosociété Inc. v. Banro Corp., 2012 SCC 18, [2012] 1 S.C.R. 636; Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640 [^20]: 2012 ONCA 407, 110 O.R. (3d) 481, 350 D.L.R. (4th) 694. [^21]: Combined Air v. Flesch, 2011 ONCA 764, 108 OR (3d) 1 (Ont. CA) and Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 SCR 87. (SCC). See para. 4 of the latter. [^22]: See paras. 29 – 30 As a matter of interest, the Baglow case ultimately went to trial. See 2015 ONSC 1175 At the trial, the judge found the impugned words were defamatory but found that the defence of fair comment had been made out. At the original summary judgment motion, the judge had found the words were not capable of bearing a defamatory meaning but if they were, the defence of fair comment applied. The result was the same. [^23]: Mason v. Perras Mongenais, 2018 ONCA 978 @ para. 44 [^24]: See Botiuk v. Toronto Free Press Publications Ltd., [1995] 3 S.C.R. 3 @ para. 62 [^25]: Hill v. Church of Scientology, supra @ para. 183 [^26]: McDonald v. Freedman, 2013 ONSC 6812 (Div. Ct.) [^27]: Courts of Justice Act, R.S.O. 1990, c.C.43, as am [^28]: See for example the recent amendments in relation to actions under $200,000.00 reflected in Rule 76.02 (2), s. 14 of the Libel and Slander Act, RSO 1990, c. L.12 and paragraphs 127 – 134 of Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640 [^29]: Hryniak, supra, para. 49 [^30]: See DeZwirek v. Swadron, 2019 ONSC 1709, Wallace v. Ralph-Edwards, 2019 ONSC 899 and Hollingshead v. Aerarium Development Corporation Limited, 2019 ONSC 231 in which this issue is discussed. [^31]: 2014 SCC 7, [2014] 1 S.C.R. 87 [^32]: Supra – para. 49 - 51 [^33]: Supra, para. 55 [^34]: Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 SCR 87 [^35]: See subrules 20.04 (3), (4) & (5) and subrule 20.05 (1) [^36]: Hryniak, supra @ par. 5 [^37]: Mason v. Perras Mongenais, supra [^38]: Brent v. Nishikawa, 2016 ONSC 4297 for example is a case where both parties agreed summary judgment was appropriate. Similarly in Zoutman v. Graham, 2019 ONSC 2834 neither party contested the availability of summary judgment. [^39]: Bains v. 1420526 Ontario Inc., 2011 ONSC 3686 and Emeny v. Tomaszewski 2019 ONSC 3298 for example were both motions for default judgment. Nassri v. Homsi, 2017 ONSC 4554 was a summary judgment motion in which the defendant did not file materials and did not appear to oppose the motion. In Senator Tobias Enverga Jr. v. Balita Newspaper et al., 2016 ONSC 4512 the defendants relied upon statements by two individuals who were deceased and whose evidence had not been preserved. The defendants acknowledged they had no other evidence to support their defences. [^40]: For example, Magno v. Balito, 2018 ONSC 3230 was a case in which the defendant had failed to plead particulars of justification or truth, and there was no admissible evidence to support those defences. [^41]: See Sustainable Development Technology Canada v. Sigurdson, 2018 ONSC 7320 in which the defendant was self-represented and there is no mention of this decision. Similarly, in Oliveira v. Oliveira, 2019 ONSC 4400 it does not appear the judge was referred to Baglow v. Smith. [^42]: Barrick Gold Corp v. Lopehandia, supra – see paras 66 & 67 [^43]: See Downard, Halsbury’s, supra @ p. 345. A statement characterizing conduct as disgraceful without reference to supporting facts will not be regarded as a comment but an allegation of fact. [^44]: WIC Radio Ltd. v. Simpson, 2009 SCC 40, [2008] 2 SCR 420 [^45]: Supra at note 41 [^46]: See Buttera v. Chown, 2017 ONCA 783, 2017 OPNCA 783, 137 OR (3d) 561 (Ont. CA) para 35 [^47]: Of course the defendants also maintain that many of the comments are not defamatory. [^48]: See Walker v. CFTO Ltd, supra @ para 22 confirming that although aggravated damages are possible, compensation for wounded feelings is part of the general damages assessment. [^49]: See Walker, supra and Vorvis v. Insurance Corporation of British Columbia, [1989] 1 SCR 1085 [^50]: Not only did the Deputy Judge award costs to the plaintiffs (defendants in that action) but the net judgment against the corporate defendant was ordered paid into court to await the outcome of this motion.
