COURT FILE NO.: CV-20-00643796-0000

DATE: 20210629

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: MUHAMMAD ALI BUKHARI, Plaintiff

AND: SYED ATIQUR RAHMAN, ASIA RAHMAN and WORLD IMMIGRATION NETWORK INC., Defendants

BEFORE: Paul B. Schabas J.

COUNSEL: Alamgir Hussain, for the Plaintiff Amandeep S. Dhillon, for the Defendants

HEARD: June 25, 2021

AMENDED reasons for judgment

[1] This is a motion for summary judgment by the defendants seeking to dismiss the action. In the alternative, the defendants seek an order dismissing the action or striking out the claim without leave to amend, on the grounds that the action is frivolous, vexatious and/or is an abuse of process. For the reasons that follow, I grant summary judgment and dismiss the action.

The pleadings and evidence

[2] The plaintiff, Muhammad Ali Bukhari (“Bukhari”) is a journalist in Toronto who writes for newspapers which serve the Bangladeshi community. He also appears to be involved with federal political activities.

[3] The defendant Syed Atiqur Rahman (“Rahman”) is an immigration consultant and the principal of the defendant World Immigration Network Inc. (“WINI”). Rahman obtained degrees in law from universities in Bangladesh and was a lawyer there before immigrating to Canada. The defendant Asia Rahman (“Asia”) is Rahman’s wife. Bukhari and Rahman are related, although the nature of the relationship is a matter of some dispute.

[4] On July 13, 2020, Bukhari issued this action seeking damages against the defendants for “defamation, slander negligence, mental stress, harassment, discrimination, and intention infliction of mental distress.” The claim contains many paragraphs that seem directed at attacking Rahman and have little or no connection to the cause of action. To the extent the claim sets out a cause of action at all, Bukhari pleads that Rahman sent him three text messages on May 8 and May 9, 2020, which it is alleged are defamatory.

[5] Bukhari pleads that the defamatory statements in the text messages were that Rahman identifies himself in his signature line as a “lawyer,” that Rahman told him to “just shut up!,” and that he called Bukhari a “mad person.”

[6] Bukhari also pleads, without any specificity, that Rahman “fabricates and circulates false and defamatory allegations within the Bengali community, concerning the integrity of Plaintiff,” which Bukhari pleads have left him “with feelings of emotional distress, shame, low self-esteem,” among other things.

[7] The statement of defence sets out the text messages in full, pleads that they were not sent to anyone other than Bukhari, and that they are not defamatory. The defendants also denied circulating any false and defamatory allegations about Bukhari within the Bengali community. The defence pleads that the claim has been orchestrated by Bukhari’s counsel, Mr. Alamgir Hussain (“Hussain”), who co-owns a newspaper with Bukhari. Rahman, who was once a close friend of Hussain, pleads that the lawsuit is “an attempt to punish and harm the Defendants, and specifically Syed [Rahman], for not giving them money when they have requested it and/or for choosing not to go into business with them.”

[8] On this motion, Rahman has provided evidence supporting the statements made in his statement of defence. He sets out the text messages, puts them in context, and states that he only sent them to Bukhari.

[9] On May 8, 2020, Rahman sent Bukhari the following private text message:

Assalamu Alaikum Mama! How are you doing? Hope you and your family are safe and sound. May Allah (SWT) save us from this Unprecedented Covid 19 - pandemic. Be well and stay safe.

May Allah (SWT) bless you and your family. Happy Ramandan Mubarak! Jazakallah.

Syed Rahman

Lawyer, Toronto, Ontario.

[10] Rahman says he sent this text to check in on Bukhari and his family amidst the COVID-19 pandemic. He had not texted Bukhari for three years. “Assalamu Alaikum” means "peace be upon you". “Mama” is term of affection that Rahman says he used for Bukhari. Rahman explained that he used the word “lawyer” on his texts as his name is a common one in Bengali, and that some friends and family affectionately refer to him as “the lawyer.”

[11] The two text messages on the following day were not so civil.

[12] The second and third text messages follow Bukhari’s hostile response to the first text, challenging Rahman on holding himself out as a lawyer when he is not qualified as one in Ontario. Rahman responded as follows:

I am surprised! Be nice your behaviour. Show your minimum courtesy. My honest interest was just to know you and your family's well being and I had shown my gentleman behaviour. You are treating me badly which is not feeling me well. Don't be treated anyone like this away. I am sure you are not a mad person. I will show you my credential. Hope you will see it soon. I am not a barrister and solicitor yet but you will see soon. Thanks

[13] Bukhari and Rahman then exchanged the following text messages:

Bukhari: I received a number of complaints against you and you are doing criminal offence with a journalist. You must need to know what you are doing.

Rahman: I know you behaviour. Just shut up!! This is too much.

Bukhari: I am warning you about who you are. So you better buzz off.

[14] Rahman’s wife, Asia, had no involvement in the texts, and did not see any of them until this action was commenced. Nor is there any pleading that Asia or WINI had any involvement in sending the texts other than a bald statement the WINI is “responsible for damages inflicted to the Plaintiff jointly and severely [sic!] with Rahmans.”

[15] In his evidence Rahman also addresses his assertion that the action was brought for an improper purpose, stating that he has turned down business proposals made to him by Hussain, as well as loan requests and requests for money to support Bukhari’s political ambitions. Rahman has been sued in three other actions since May 2020 in which Hussain is the lawyer for the plaintiffs. Rahman has also been the subject of attacks on his reputation on Bengali-language television and has sued, among others, Bukhari, Hussain and Hussain’s company, Law TV Inc., for defamation. Many of the alleged defamatory statements complained of in Rahman’s action are repeated by Bukhari in the statement of claim in this action, which was issued by Hussain.

[16] Bukhari’s evidence talks about his surprise at receiving the text on May, 8, 2020, “out of the blue.” After reviewing the text exchanges on May 8 and 9, Bukhari says that even though it stopped there, “the word, tone and the defamatory language he has used based on his past activities caused a great deal of stress and harm to my mental, physical and lifelong earned ethical reputational credibility as the "Rahman" couple disseminated this matter or incident among their family members and friends, particularly living in Canada, USA and Bangladesh; I therefore filed this suit against him.” However, Bukhari does not state how any of the alleged defamatory statements have been disseminated to anyone.

[17] In his evidence, Bukhari denies several of the allegations Rahman has made against him, but his evidence is largely a further attack on Rahman, repeating many of the allegations contained in the claim with little, if any, support.

[18] Rahman and Bukhari accuse one another of lying about a range of matters in their competing affidavits. Bukhari’s lawyer, Hussain, cross-examined Rahman and Asia in May. Factums were exchanged on June 9 and June 18 in preparation for the hearing on June 25, 2021. In addition, on June 18, 2021, Syeda Reza (“Syeda”), Bukhari’s wife, swore an affidavit, commissioned by Hussain, in which she stated:

I have seen an unsolicited text message first came to my husband's phone from the defendant Syed Atiqur Rahman ("Rahman") on May 8, 2020 at 4:10 PM, while I and my husband were watching television together during the month of Ramadan as waiting for the dusk to break our Ramadan fasting.

During that time, in his first text message, defendant Rahman claimed himself as a "lawyer" and thereafter in exchanges of text messages he stated to my husband that, his "qualifications equivalent to Juris Doctor (JD), "Be nice your behavior", "You are treating me badly which is not feeling me well", "I am sure you are not a mad person" and "I know you[r] behavior. Just shut up!!", those messages continued until following day at early hours of May 9, 2020 at 1:31 AM, where I did not involve, rather observe.

[19] Such as it is, this is the only evidence that anyone other than the plaintiff, saw the private text messages. Counsel for Rahman objected to Syeda’s affidavit being admitted (along with other evidence filed by Bukhari at the last minute) as it is late, improper and he has not had an opportunity to respond to it or test it.

Test for summary judgment

[20] Rule 20.04(2)(a) of the Rules of Civil Procedure states that “the court shall grant summary judgment if […] the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence.” In Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 (“Hryniak”), Karakatsanis J. stated at para. 4 that “a trial is not required if a summary judgment motion can achieve a fair and just adjudication, if it provides a process that allows the judge to make the necessary findings of fact, apply the law to those facts, and is a proportionate, more expeditious and less expensive means to achieve a just result than going to trial.

[21] At para. 49 of Hryniak Karakatsanis J. continued:

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.

[22] Recently, in Royal Bank of Canada v. 1643937 Ontario Inc., 2021 ONCA 98 (“Royal Bank”), the Court of Appeal noted, at para. 27, that “motion judges are required to engage with the Hryniak framework process…look at the evidentiary record, determine whether there is a genuine issue requiring a trial, and assess, in their discretion, whether resort should be taken to the enhanced powers under rr. 20.04(2.1) and (2.2) of the Rules of Civil Procedure.”

[23] The Hryniak framework is summarized by the Court of Appeal at para. 24 of Royal Bank as follows:

1. First, the motion judge should have determined if there was a genuine issue requiring a trial based only on the evidence before her, without using the enhanced fact-finding powers under r. 20.04(2.1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

2. Second, if there appeared to be a genuine issue requiring a trial, the motion judge should have determined if the need for a trial could be avoided by using the enhanced powers under r. 20.04(2.1) – which allowed her to weigh evidence, evaluate the credibility of a deponent, and draw any reasonable inference from the evidence – and under r. 20.04(2.2) to order that oral evidence be presented by one or more parties.

[24] In this case I do not need to utilize the enhanced fact-finding powers contained in Rule 20. The parties have both filed evidence and must be taken to have put their best foot forward, which includes their full foot forward: Toronto-Dominion Bank v. Hylton, 2012 ONCA 614, at para. 5; Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200, at para. 33. The issues raised involve facts which are largely not in dispute. They depend on a review of text messages and any evidence of publication, and the consideration and application of straightforward principles of defamation law. Accordingly, in this case summary judgment provides a useful mechanism to “save the parties the cost and delay associated with going to trial on a number of other issues”: 2287913 Ontario Inc. v. Blue Falls Manufacturing Ltd., 2015 ONSC 7982, at para. 10.

Defamation Claim

[25] To establish a claim for defamation, a plaintiff must establish three things:

1. the defendant made a defamatory statement, in the sense that the impugned words would tend to lower the plaintiff’s reputation in the eyes of a reasonable person;

2. the words in fact referred to the plaintiff; and

3. the words 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.

[26] In this case the plaintiff has difficulties with each element of the tort.

[27] First, do the text messages contain words that would tend to lower the plaintiff’s reputation in the eyes of a reasonable person? As Abella J.A. (as she then was) stated in Color Your World Corp. v. C.B.C. (1998), 156 D.L.R. (4th) 27, 1998 CanLII 1983 (ON CA), at p. 36:

A defamatory statement is one which has a tendency to injure the reputation of the person to whom it refers; which tends, that is to say, to lower him [or her] in the estimation of right-thinking members of society generally and in particular to cause him [or her] to be regarded with feelings of hatred, contempt, ridicule, fear, dislike, or disesteem. The statement is judged by the standard of an ordinary, right-thinking member of society. Hence the test is an objective one...

[28] More recently, in Guergis v. Novak, 2013 ONCA 449, the Court of Appeal expanded on this definition, stating, at para. 38:

When considering a reasonable or ordinary member of the public, the bar should be set in a middle ground: “[i]t should not be so low as to stifle free expression unduly, nor so high as to imperil the ability to protect the integrity of a person's reputation” (p. 36). The meaning of a particular communication should be considered from the perspective of a reasonable person who is reasonably thoughtful and informed. “A degree of common sense must be attributed to viewers”: Color Your World, at pp. 36-37.

[29] Whether a statement is capable of being defamatory is a question of law. This is a threshold issue for a judge. If it is capable of a defamatory meaning it is left to the trier of fact to determine whether the statement actually conveys a defamatory meaning: Guergis at para. 40; Young v. Toronto Star Newspapers Ltd. (2005), 77 O.R. (3d) 680, 2005 CanLII 35775 (ON CA), at para. 68.

[30] In my view the first text is not capable of bearing a defamatory meaning. There is nothing that is stated in it that could cause a reasonable person to think less of Bukhari.

[31] Bukhari’s complaint that Rahman is improperly describing himself as a lawyer has nothing to do with what people would think of Bukhari. Based on the evidence, Rahman should not be representing himself to people in a manner that suggests he is a lawyer in Ontario, but it has no impact on what people would think of Bukhari, let alone cause people to think less of him.

[32] As to the words “just shut up?” in the second text, they are also not capable of being defamatory. Telling someone to “shut up” is not, on its own, a phrase that would cause a reasonable person to thing less of the person to whom it is being said. Indeed, reasonable people might be more inclined to think less of the person saying it, as they are words often said rudely or in anger – which appears to be the circumstance in this case.

[33] Even if the words “just shut up” are capable of bearing a defamatory meaning, in my view they do not bear such a meaning in this case as they would not cause a reasonable person to think less of Bukhari.

[34] Bukhari’s complaint about the third text is also misguided. The statement of claim alleges that Rahman called Bukhari a “mad person.” In fact, what Rahman said was “I am sure you are not a mad person.” [emphasis added]. Rahman explained in his evidence that he used the word “mad” as a synonym for “angry.” Leaving aside whether saying someone is “mad” or “angry” can be defamatory at all, saying that someone is not mad or angry is not capable of being defamatory.

[35] The second element of the test for defamation, that the words refer to the plaintiff, may be made out for the second and third texts; however, this element is not met for the first text – which is the claim that Rahman calling himself a lawyer somehow refers to and is defamatory of Bukhari.

[36] Turning to the third element of the tort of defamation, the evidence from Rahman is that all of the text messages were private messages between him and Bukhari. This is not contradicted by Bukhari. As a result, there is no evidence that any of the allegedly defamatory words were communicated by the defendants Asia or WINI to anyone, nor is there any evidence that they authorized, condoned, or even knew of the text messages.

[37] Further, the only evidence of anyone other than the plaintiff seeing the words complained of is in the affidavit of Bukhari’s wife, Syeda, filed just prior to the hearing. In that affidavit, the admissibility of which is strongly objected to by the plaintiff, Syeda asserts that she saw the text messages when they were received as she was watching television with her husband. However, this is not evidence of communication of defamatory words by the defendant Rahman to Syeda, or to anyone else. If Syeda saw the texts it was because her husband showed them to her, not because Rahman communicated them to her.

[38] It is open to a plaintiff to plead and rely on a republication of defamatory words to others as a natural and probable consequence of the initial communication, as occurs when, for example, a defendant issues a press release and the words are then republished in a newspaper or broadcast: Breeden v. Black, 2012 SCC 19, [2012] 1 SCR 666 at para. 20. But that has not happened here. Bukhari has not pleaded that the defendants ought to have anticipated that he would show the texts to his wife, nor did he even plead or give evidence that his wife saw them, casting doubt on the credibility of Syeda’s late-breaking assertion. This is aside from the difficulty that one would have in holding defendants accountable for republication by the plaintiff, as that is harm the plaintiff would have brought on himself.

[39] Accordingly, the plaintiff has failed to establish that Rahman has communicated the words in the text messages to anyone other than Bukhari himself.

[40] In short, the evidence is clear that there has been no defamation of the plaintiff and there is, therefore, no genuine issue that requires a trial.

Other torts claimed

[41] To the extent that the plaintiff has pleaded other torts, I agree with the defendants that those claims have no merit.

[42] As noted above, the claim refers to the torts of “defamation, slander negligence, mental stress, harassment, discrimination, and intention infliction of mental distress.” The plaintiff has made no effort to explain how these claims can be asserted based on words which, it is alleged, damaged his reputation.

[43] The law is clear that other torts cannot be pleaded as a “dressed up” defamation claim. Defamation law has been developed over centuries to strike a balance between freedom of expression and protection of reputation, including the harm that comes from an attack on one’s reputation such as mental distress. Accordingly, courts have been reluctant to permit claims for harm from the publication of words to be pursued under alternative tort claims where the defendants would be denied the defences developed in defamation law. In negligence, for example, barring special circumstances such as an employment or professional context that might give rise to a duty of care, such claims will not be permitted: See, e.g., Young v. Bella, 2006 SCC 3, [2006] 1 SCR 108, as an exception to the rule. But also see Shtaif v. Toronto Life Publishing Co., 2013 ONCA 405 at paras. 81-85; Guergis v. Novak, 2012 ONSC 4579 at para. 34; Avalon Rare Metals Inc. v. Hykawy, 2011 ONSC 5569 at para. 11.

[44] Here, the claim for slander is just another way of claiming defamation, and has no application. The plaintiff has pleaded no special circumstances, such as existed in Young v. Bella, to support a negligence claim. The Court of Appeal has recently rejected the existence of a stand-alone tort of harassment: Merrifield v. Canada (Attorney General), (2019), 145 OR (3d) 494, 2019 ONCA 205. Similarly, a claim of discrimination based on the Human Rights Code, RSO 1990, c. H-19, cannot be brought in the courts where there is not some other independent actionable wrong: Rivers v. Waterloo Regional Police Services Board, 2018 ONSC 4307, at paras. 55-57, appeal dismissed 2019 ONCA 267, leave to SCC dismissed October 24, 2019.

[45] Finally, the claim for intentional infliction of mental distress is not supported by the evidence, in which the plaintiff would have to show that the actions of the defendants constituted conduct that was (1) flagrant and outrageous; (2) calculated to produce harm; and (3) resulted in a visible and provable injury. Prinzo v. Baycrest Centre for Geriatric Care (2002), 60 OR (3d) 474, 2002 CanLII 45005 (ON CA) at para. 43. In this case Bukhari has put forward no evidence to support such a claim, assuming it could be asserted at all in the context of a claim for harm to reputation, which I doubt as the tort of defamation is able to compensate for the mental distress caused by reputational harm.

Motion to strike

[46] Having determined that the action should be dismissed under Rule 20, it is not necessary for me to address the motion to strike the statement of claim on the grounds that, as pleaded, the action is frivolous, vexatious and/or is an abuse of process under Rules 21 and 25.

[47] However, there is no question that the pleading itself is problematic. The plaintiff has failed to plead material facts, such as publication to others, that would support a defamation claim, or facts to support the other claims asserted. The bald allegation that Rahman was circulating false and defamatory allegations within the Bengali community, without any particulars is inadequate, and troubling, as are the many irrelevant attacks on Rahman in the pleading.

[48] My conclusion that the case clearly has no merit, and the attacks on Rahman in the statement of claim, amply support a finding that the action is indeed frivolous, vexatious and an abuse of process: Salasel v. Cuthbertson, (2015), 124 OR (3d) 401, 2015 ONCA 115 at paras. 8-9.

Conclusion

[49] In conclusion, the summary judgment motion is granted and the action is dismissed.

[50] As the defendants were successful, they are entitled to costs. In my view, those costs should be on a substantial indemnity basis. The claim had no merit whatsoever, and contains improper, inflammatory and irrelevant allegations against Rahman. The defendants have had to respond to these allegations. They have also had to address evidence filed at the last minute. The conduct of the plaintiff in bringing this action is reprehensible, an abuse of process, and merits an award of costs on an elevated basis.

[51] The defendants have submitted a Costs Outline seeking $25,524.93 for costs on a substantial indemnity scale. This is within a few hundred dollars of the substantial indemnity amount sought in the plaintiff’s Costs Outline and is an amount that the plaintiff should reasonably have expected to pay if unsuccessful. Accordingly, the plaintiff shall pay the defendants costs of $25,524.93.

Paul B. Schabas J.

Date: June 29, 2021