Court File and Parties

COURT FILE NO.: CV-19-619104-0000

DATE: 20210514

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Slobodan Pavloski, Datsun Property Management Ltd., Sadhna Gurha, Dashpal Singh Takhar, Kylwant Ajimal, Krishandat Ramnarain and York Condominium Corporation No. 414

AND:

Krishnanand Ramkissoon

BEFORE: J.T. Akbarali J.

COUNSEL: Paul Robson, for the plaintiffs, and proposed plaintiff Charles Fernandes

Krishnanand Ramkissoon, in person

HEARD: In writing

ENDORSEMENT

Overview

[1] The plaintiffs bring this motion seeking interim injunctive relief, restraining the defendant from publishing, continuing to publish, or otherwise disseminating on the internet any articles or statements that reference the plaintiffs and their business affairs. They argue that the defendant has been maliciously libeling the plaintiffs.

[2] The plaintiffs also seek to amend their claim to add Charles Fernandes as a plaintiff. Mr. Fernandes seeks that the injunctive relief described above also apply to the defendant’s publications about him.

[3] The defendant, who is self-represented, appears to take no position on the motion to amend the claim. However, he resists the motion for injunctive relief, arguing that his concerns about the plaintiffs are true. I infer from his affidavit materials that he relies on the defences of truth and fair comment.

Background

[4] The plaintiff Slobodan Pavloski is the owner of the plaintiff Datsun Property Management Ltd, which is the management company for the plaintiff York Condominium Corporation No. 414. The condominium building at issue is located on Kipling Ave; the defendant is a resident there. The other plaintiffs are directors of the condominium corporation.

[5] As described more fully below, the defendant has concerns about the management of the finances of the condominium corporation. He believes the plaintiffs have been involved in wrongdoing.

[6] He has posted on his Facebook page about his beliefs. In his posts he refers to the plaintiffs having stolen the homeowners’ money, suggests they will go to jail, and casts the plaintiffs as dishonest criminals who have misused the funds of the unit owners of the condominium building. They allege they have been libeled by these posts and have suffered damages. They seek an interim injunction pending trial.

[7] The defendant’s evidence includes communications from the condominium’s auditor that suggest that:

a. The condominium corporation has not deposited all the monies received from the owners to be allocated to the reserve fund into a reserve bank account or reserve investments;

b. The corporation does not have sufficient funds to pay for future major repairs and replacement costs.

[8] The defendant’s evidence also suggests that, although the corporation is required by law to release a Periodic Information Certificate twice per year, between November 1, 2017 and the date of the defendant’s affidavit, sworn on October 29, 2020, the corporation has released only one Periodic Information Certificate to the homeowners. Moreover, the defendant deposes that the Periodic Information Certificate that was released refers to the last day of the corporation’s quarter as July 31, 2019, which does not coincide with the corporation’s year end or quarterly ends; it purports to report end of quarter financial data one month into the first quarter of the condominium’s fiscal year.

[9] The defendant points to a discrepancy between the information contained in the Periodic Information Certificate and the Audited Financial Statements. The former refers to the balance of the reserve fund at the beginning of the 2020 fiscal year as $230,315. However, the audited financial statements for 2019 indicate that, at the end of the 2019 fiscal year, the fund balance was running a deficit of $(405,967), and the same deficit was carried forward to the beginning of the 2020 fiscal year. This amounts to a variance of over $600,000 between what the corporation disclosed and what the audited financial statements report.

[10] The defendant also deposes that the management of the corporation sent a Periodic Information Certificate to a new condominium owner in February 2018, but did not provide the Periodic Information Certificate to the existing condominium owners. This Periodic Information Certificate shows the balance of the reserve fund as having a surplus of $276,671. The audited financial statements for 2018 show the balance of the reserve fund at the beginning of the fiscal year at $(599,471), a significant swing for which there is no apparent explanation in the record.

[11] The defendant’s evidence includes reference to a plan signed by the directors that the defendant argues falsified the reserve fund balance. He argues this forms a basis for his opinion and commentary that the plaintiffs, including the directors of the corporation, failed to act honestly and in good faith, and failed to exercise the care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances, and as such breached their statutory duties of care.

[12] There is more evidence in the defendant’s affidavit, all to the same point: for the last few years, every single record issued by the directors or the management of the corporation shows a positive balance in the reserve fund account when, according to the auditor, the account is in a deficit position.

[13] The plaintiffs’ materials do not effectively refute the defendant’s evidence. They note that the police were called in to do a fraud investigation. The plaintiffs claim the investigation took three days, and concluded there was no wrongdoing.

[14] The defendant states it is apparent from the redacted police report in the record that the investigation was much briefer. The report is dated the day after the police visited the condominium corporation. While that is correct, I note that the report includes brief follow up dated about two weeks after the original report. The defendant deposes he was present, and the investigation was about an hour long. I cannot tell from the record how long the police spent investigating. The report does not disclose investigative steps taken which would assist me to understand how long police spent investigating, nor does it specifically indicate the length of the investigation.

[15] In any event, while the report concludes there was no crime, there is also evidence in the record that indicates that the police are willing to take the case on if the residents are able to go through the corporation’s record and present a case. The report indicates that an agreement was brokered by which the residents were to have full disclosure of the “condo fund” for the preceding twelve months.

[16] The police report also indicates that at least one plaintiff was previously involved in misuse of funds from another condominium corporation and was let go from his management job as a result.

[17] I also note that the police report documents a condominium in decay, a description at odds with the plaintiffs’ evidence about the good state of repair of the building. There is evidence in the record indicating that in fiscal year 2017, $1.1 million was spent in repairs. The police report from May 2017, about a month before the end of fiscal year 2017, describes their observations of the condominium as follows:

The officers observed a flood in the laundry room, water damage on ceiling tiles, mold throughout the building, gutted washroom with only concrete and damaged walls in the laundry room. The building appeared as if it was not repaired in years.

[18] The report also indicates that someone (whose identity is redacted) “captured a screen shot of the property managers website claiming that his building generates the most money out of all the surrounding properties and has since deleted the statement off his website.”

[19] As I noted, the police attendance resulted in an agreement by which the property management agreed to provide financial disclosure, but this has not been done. Other adjudicative bodies have been involved. The Condominium Authority Tribunal found that the corporation had no valid reason to refuse a homeowner access to the records that he requested, but the corporation has not yet released those records. Similarly, the Small Claims Court ordered Mr. Pavloski and the corporation to produce the corporation’s official bank statements. They have not complied with that order either, nor an order from the CMRAO from July 2020 to produce the records. The plaintiffs’ reply evidence showing the release of some financial records is damming in its paucity. Although the plaintiffs claim there have been “numerous times that the corporation has disclosed financial documents and been completely transparent with the unit owners,” the records in support of this claim are limited to emails attaching some PDFs (which themselves are not attached to the affidavit, making it impossible to see what was sent) purporting to release some financial information for the months of April, May and August, 2017. Hardly anything has been released.

[20] Although the plaintiffs question how the defendant could have obtained the financial information contained in his materials had they not released it, they have not adduced any proof that they released the information. Moreover, the answer as to how the defendant obtained the information appears in the his affidavit: he has been sourcing the information from new unit owners who obtained information in the process of purchasing their units. The evidence does not support the plaintiffs’ contention that they have been transparent about the financial management of the condominium corporation.

[21] There is also evidence in the record that the plaintiffs refrained from holding annual general meetings for two years; in 2019, they finally held an AGM at which they delivered audited financial statements from 2017 for the first time, and nothing more recent. It was then that the homeowners learned the directors had caused the corporation to take out a $500,000 loan without approval from the homeowners, at a time when the borrowing by-laws of the corporation were actively under consideration.

Analysis

The Interim Injunction

[22] The test for an interim injunction requires the plaintiffs to establish a serious case to be tried, that the applicant would suffer irreparable harm if the injunction were refused, and that the balance of convenience favours that the injunction be granted: RJR Macdonald Inc. v. Canada (Attorney General), 1994 SCC 117, [1994] 1 S.C.R. 311.

[23] In R. v. Canadian Broadcasting Corp., 2018 SCC 5, at para. 12-13 [ “CBC’], the Supreme Court of Canada described the general framework for an interlocutory injunction as requiring: (i) the applicant to demonstrate a serious question to be tried, in the sense that the application is neither frivolous nor vexatious; (ii) the applicant to demonstrate that it will suffer irreparable harm if the injunction is refused; (iii) an assessment of the balance of convenience, in order to identify the party which would suffer greater harm from the granting or refusal of the interlocutory injunction, pending a decision on the merits.

[24] However, the Court also noted that where a mandatory interlocutory injunction is sought, the first stage of the test requires inquiry into whether the applicants have shown a strong prima facie case – a heightened standard: CBC, at para. 15. Here, the plaintiffs seek a mandatory injunction because, among other things, they seek to restrain the defendant from continuing to publish articles or statements about them or their business which they claim libel them maliciously. Given that the publications at issue are social media posts which remain up on the defendant’s Facebook page, in my view, the plaintiffs seek a mandatory injunction. The only way the defendant can cease continuing to publish the Facebook posts is by taking them down. The order sought, while worded as an injunction restraining the defendant from taking actions, in fact seeks to require the defendant to take positive and active steps.

[25] To show a strong prima facie case, the applicant must show a strong likelihood on the law and the evidence presented that, at trial, the applicant will be ultimately successful in proving the allegations set out in the originating notice: CBC, at para. 18.

[26] The plaintiffs rely on Rapp et al. v. McClelland & Stewart Ltd. et al., 1981 (ON SC) in which Griffiths J. described the requirements for an injunction in a defamation case, finding that “the injunction should only issue where the words complained of are so manifestly defamatory that any jury verdict to the contrary would be considered perverse by the Court of Appeal.”

[27] That passage was indirectly cited by Spence J. in Pichler v Meadows, 2010 ONSC 1863, at para. 16, in that he cited from the decision of the Divisional Court in Beidas v. Pichler (2008), 2008 (ON SCDC), 294 D.L.R. (4th) 310, which itself cited from Rapp. However, the Divisional Court went on, quoting from Sharpe’s treatise Injunctions and Specific Performance (2nd ed. 1992 (loose-leaf)), at paras. 5.40-5.70, including this passage:

The well-established rule is that an interlocutory injunction will not be granted where the defendant indicates an intention to justify [i.e. prove the truth of] the statements complained of, unless the plaintiff is able to satisfy the court at the interlocutory stage that the words are both clearly defamatory and impossible to justify.

[28] In this case, I find that the plaintiffs cannot make out the test for an interlocutory injunction because they cannot establish, on the law and evidence presented, that there is a strong likelihood at trial that the plaintiffs will be successful in proving the allegations set out in the Statement of Claim, or that the words complained of are impossible to justify.

[29] The defendant’s material raises arguments that his allegations that the plaintiffs have acted dishonestly, or criminally, by misusing money from the homeowners are true, that referring to them as thieves, for example, is fair comment, and that his expression is justified.

[30] The evidence before me raises serious questions about the financial management of the condominium corporation. I cannot conclude on this record that there is a strong likelihood that the plaintiffs will successfully refute the defendant’s allegations. They have not, in their moving or reply materials, successfully refuted the defendant’s allegations on this motion. Thus, while it is plain to see that the words complained of have been published, and relate to the plaintiffs, and while the words appear to import a defamatory meaning (see Grant v. Torstar, 2009 SCC 61, [2009] 3 S.C.R. 640, at para. 28, WIC Radio Ltd. v. Simpson, 2008 SCC 40, at paras. 67-68), I cannot conclude that there is a strong likelihood that the defences raised by the defendant will fail, or put another way, that the words complained of are impossible to justify.

[31] As a result, I dismiss the motion for the interim injunction.

Amendment of Claim

[32] The plaintiffs seek to amend the claim to add another plaintiff about whom the defendant has made postings. The defendant does not appear to object to the amendment.

[33] Under r. 26.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.

[34] I see no prejudice that would prevent an amendment and none is raised.

[35] Accordingly, the plaintiffs’ motion to amend their statement of claim is granted.

Costs

[36] No party filed costs outlines on this motion. If the parties are unable to agree on costs, I will receive submissions as follows:

a. The defendant may file a costs outline, plus any offers to settle upon which he relies, by May 21, 2021;

b. The plaintiffs may file a single costs outline, plus any offers to settle upon which they rely, by May 26, 2021;

c. The defendant may file brief reply submissions, of no more than one page, by May 28, 2021.

d. Materials shall be delivered to my attention by email to my assistant at Yomattie.evans@ontario.ca

J.T. Akbarali J.

Date: May 14, 2021