Court File and Parties

COURT FILE NO.: CV-20-641412 DATE: 20210702

ONTARIO SUPERIOR COURT OF JUSTICE

RE: 385277 Ontario Ltd., Plaintiffs -and- Jeffrey Gold and Anna Mae Gold, Defendants

BEFORE: F.L. Myers J.

COUNSEL: Adam Stephens and Madeleine Dusseault, for the defendants Elliot Berlin, for the plaintiffs

HEARD: June 23, 2021

ENDORSEMENT

The Motions

[1] The plaintiff moves to amend its statement of claim to add its principal, Shane Baghai, as a party plaintiff. The defendants consent. The order is therefore granted as agreed.

[2] The defendants lease a farm property from the corporate plaintiff. Mr. Baghai is the principal of the landlord. The leased farm is located right next door to the Baghai family farm property.

[3] The plaintiffs move to extend to trial the interim order made by Akbarali J. dated May 10, 2021, restraining the defendants from trespassing on the plaintiffs’ property, coming too close to the fence separating the properties, cutting down trees on the leased property, and continuing to harass Mr. Baghai online.

[4] The interim order was made on consent of all parties to preserve the status quo pending this hearing. The defendants consent to continuing the orders that they not trespass or cut down trees pending trial. The issue is whether they should be enjoined from continuing their internet harassment of Mr. Baghai pending trial.

[5] As the interim order was made on consent in a prudent manner to protect all of the parties from further claims and harm before they could get to court on a full record, I do not consider the prior consent order as a factor on the current motion.

[6] I approach the matter afresh and for the reasons set out below, I grant the order sought.

Facts

(I) The Lease

[7] In June, 2019, the Golds saw that the plaintiffs’ 10 acre property was for lease. After speaking to the property manager, they wanted to meet the landlord Mr. Baghai.

[8] Although not mentioned in the lease (which has the usual “entire agreement” clause) the Golds say that the shook hands with Mr. Baghai on his promise to have a personal relationship with them. He also promised that they could have access to his livestock trailer and carpentry shop.

[9] Relying on these promises, they signed a two-year lease expiring April 30, 2021.

[10] After moving in, the Golds discovered issues with their water pressure due to diversion of water to Mr. Baghai’s neighbouring property. In addition, after once using Mr. Baghai’s livestock trailer with permission of Mr. Baghai’s farm manager, a later request to use the trailer was met with a curt response of, “NEVER” by the farm manager.

[11] Mr. Gold emailed Mr. Baghai to complain and also advised that livestock were damaging young trees on the leased property. Mr. Baghai’s property manager responded requesting that future communication go through him. In addition, the Golds discovered that Mr. Baghai had placed “No Trespassing” signs on the boundary of their properties.

[12] In September, 2019, the Golds discovered an electricity problem in their leased barn that had resulted in the electrification of their horses’ water bowl.

[13] The Golds wrote to Mr. Baghai regarding their concerns about the state of the rented property. They offered to share their evidence with Mr. Baghai. They also raised issues with alleged misrepresentations that had been made to them by the property manager prior to leasing the property.

[14] The property manager responded and offered to let the Golds out of their lease early.

[15] Other incidents occurred that continued to upset the Golds.

[16] In January, 2020, the Golds were told that Mr. Baghai was thinking of selling the leased property at the end of their lease. The Golds started to doubt that their family had a future on the property. Therefore, on February 24, 2020, Mr. Gold proposed to accept the early termination of the lease with a possible month-to-month tenancy thereafter.

[17] At the request of the property manager, the Golds signed a Form N9 under the Residential Tenancies Act agreeing to terminate their tenancy on April 30, 2020.

[18] Mr. Gold requested the return of the post-dated rent cheques that they had already provided for the rest of the lease term. The property manager advised that he would return the cheques on the final inspection of the property at the end of the lease on April 30, 2020.

[19] Continued discussions ensued about the state of the property. The Golds invited Mr. Baghai to watch their YouTube channel to see their evidence of problems in videos that they had uploaded onto the internet platform.

[20] The property manager responded by denying making pre-lease misrepresentations and he denied that the Golds’ YouTube videos disclosed deficiencies in the property. The Golds felt that the property manager was lying to them in this and prior responses.

[21] The pandemic shutdown arrived in March, 2020. The Golds offered to assist with Mr. Baghai’s animals if required.

[22] The Golds became concerned about whether the landlord would use their prepaid rent deposit for April rent or if would cash a post-dated cheque for the month. The Golds preferred the former. In their factum, their counsel recites:

20. On March 29, 2020 [the property manger] emailed Mr. Gold asking if the Golds were leaving or planned to stay as of April 30, 2020. Mr. Gold indicated the last month's rent deposit should be applied to the April 2020 Rent. The Golds also wrote directly to Mr. Baghai indicating that they did not have any confidence in [the property manger] and wished to discuss with Mr. Baghai the method to negotiate a new arrangement if the Golds were to remain on the Property. Mr. Baghai replied on March 30, 2020 that he was well aware of what had transpired over the course of the Golds' tenancy on the Property. Mr. Baghai indicated that the terminated lease would operate if the Golds remained on the Property after April 30, 2020. The Golds replied that the rent deposit should be applied to the April 2020 Rent and that if the Golds were to remain on the Property after April 30, 2020 a new arrangement was needed. Mr. Gold indicated that there were going to relocate. Finally, due to COVID, Mr. Gold's age and maintaining the health of their family, the remaining post-dated cheques were to be mailed back to Mr. Gold.

[23] There was no uncertainty as to the state of the agreement between the parties at the time. The lease was terminated April 30, 2020 by mutual consent. The Golds were leaving and were released from liability for future rent for the year remaining under the two-year lease. If the Golds decided to stay, they asserted that they would need to agree to a new arrangement with Mr. Baghai. To put an exclamation, point on the deal, the Golds put a stop order on their post-dated April, 2020 rent cheque to prevent Mr. Baghai or his staff from cashing it.

[24] Discussions then ensued about a final inspection of the property. The property manager claimed the Golds had damaged the property. Mr. Baghai’s counsel became involved.

[25] The plaintiffs’ counsel asserted that the Golds’ YouTube videos had become defamatory and a breach of Mr. Baghai’s privacy. He also indicated that the landlord had unsuccessfully sought to deposit their April rent cheque as the Golds feared.

[26] I will deal with the YouTube videos below.

[27] The Golds say that on April 11, 2020, Mr. Baghai told them that they have no idea what was coming and he would see them in court in June.

[28] On April 30, 2020, the Golds did not leave. Initially the said that the pandemic prevented them form moving. However, they did not propose a new lease agreement or pay any rent.

[29] This lawsuit commenced in May, 2020. In July, 2020, the Golds say that whenever Mr. Baghai’s car drove by their gate, the gate opened. The gates on each of their properties were remote controlled and, apparently, operated with the same fob frequency. The Golds say that Mr. Baghai was harassing them by opening their gate. This threatened the safety of their animals and caused them and their children distress.

[30] Since April 30, 2020, the Golds have remained on the property without paying any rent. The Landlord and Tenant Board granted an interim order requiring the Golds to pay rent while the status of their tenancy is considered. The Golds apparently dispute the jurisdiction of the board over their farm property lease and they have therefore decline to obey the board’s interim order.

(II) The Videos and Harassment

[31] The Golds use their online videos to comment on their issues with the leased property and with Mr. Baghai. The comments go beyond personal issues with him however. They have also made statements about the plaintiff’s property manager. Moreover, after the Landlord and Tenant Board ruled that they Golds were required to pay to stay at the property on an interim basis, Ms. Gold posted numerous videos disagreeing, including one in which she said:

"…every ruling the Landlord and Tenant Board ever issued through the tribunal is bullshit because the tribunal has demonstrated that they can rule something without hearing from the tenants and without looking at evidence, and just pull a ruling out of their fucking ass."

[32] There are too many videos posted by the defendants for me to recite every concerning statement. I quote from the plaintiffs’ factum for the purpose of setting out some of the quotes (and omitting commentary):

20. A number of the other videos on the Defendants' channel make explicit or implicit threats to the safety of Mr. Baghai and his family, including:

(a) in a video titled "the Goddess Kali is NOT amused," Ms. Gold [says]: "I have you on a chain attached to a ring on your dick and I'm yanking you around ... I'll keep dragging you on that chain, on that ring on your dick ... "

(b) in a video titled "Dear Madam Chair," Ms. Gold states "I am also a mama bear on crack cocaine ready to metaphorically rip my landlord to shreds .... ";

(c) in the description to a video titled "the gloves are staying off", Ms. Gold states that she has an "insatiable desire to "destroy"" a man she calls "Pharaoh,"…;

(d) other videos posted to the Defendants' YouTube channel that have titles like "dead men don't talk" and "chainsaw therapy;"

(e) a video titled "petty tyrant" makes reference to the Defendants' next-door neighbour…and features images of an animal carcass; and

(f) In other videos, Ms. Gold makes references to having her son "visit" the Baghais or take care of negotiations…

22. …In the video, Ms. Gold states "And liars will be held accountable. Is that threatening to you? I bet it is. If you're a liar and if you keep doubling down on your lies. Yes, then this is very threatening."

[33] The plaintiffs also complain that the Golds have trespassed on their property and cut down mature trees as part of their harassment. The defendants have more innocent explanations for these events. However, as noted at the outset, they have agreed to an interlocutory injunction preventing these physical acts. Given the consent of the parties, I am satisfied that an injunction is appropriate on these two items and I therefore do not need to say more about them.

[34] Mr. Baghai also complains that the Golds have defamed him in their videos. Ms. Gold calls him a liar. She says he misled them, the police, and the justice system. She has said that he is an "absolute motherfucking idiot," a "nightmare landlord" and "delusional".

[35] Apart from the threats of violence and name calling, the most telling and important category of videos posted by the Golds are those demanding a settlement of this litigation. The clearest example is in a video called, “The Goddess Kali is NOT amused” posted on February 18, 2021. In this video, Ms. Gold says:

... or you can you can get your ass whipped over the internet a little bit longer. Right? I mean whatever you choose. I'm quite enjoying whipping your ass around. Right? I have you on a chain attached to a ring on your dick and I'm yanking you around. And if you like that kind of stuff then by all means drag this out as long as you like because I'll keep dragging you on that chain, on that ring on your dick. Okay? I'm from Amsterdam. I've seen it all and I can drag you on a chain on a ring on your dick indefinitely. It's going to cost you because somebody's going to have to watch these videos in which I am dragging you on a chain attached to a ring that is pierced through your dick. So, you know, you're a very cooperative element. Oh I want you to go here, now I want you to go here, now I want you to go there. And you go "Yes! My master Goddess Kalililli!!!!"

You have no idea what is coming. You absolute mother fucking idiot. Mother fucking idiot! You do not talk fuck with a mother and you certainly do not get in between a mother and her cubs. Chew on that for a little bit. Grrr. Grrrrrr.

... The Goddess Kali is what you would call a nasty woman and I am fairly intimately connected with my inner Goddess Kali. I am the prophet of Covfefe at your service, sir. You can send my lawyer a proposal and then he will take it from here. Don't make me send my son. Now that I have your attention, listen up. All of this can easily be resolved. First, you are going to pay us every last cent of our counterclaim. Right? That's first. Plus, of course, it's in there, I think, implicit, every last penny that we paid our lawyer to get that counterclaim in. Right? Fair is fair.

Compromise is foreign to us on this matter. Am I making myself clear? The entire amount plus my legal fees. Okay? And then we can talk about what you did to my daughter, my mother, my horses, me, my husband and all the aggravation that that entailed. Okay? But let's start by settling that stupid ass lawsuit because I know for a fact that you do not want that either in court or on YouTube. Right? I think you have the contact information of my lawyer. So cook up something reasonable. Am I making myself clear?

…Anyway, spring is in the air. The Oracle has spoken. So I'm sure we can work this out and everybody can live happily ever after. How's that ... for a story? Okay buddy, photo op. I'm going to be eating horsehair for the foreseeable future. Oh well. At least that's my biggest problem right now. I think it's fair to say that I expressed myself with a certain degree of clarity. You're welcome. Have a nice day. Covfefe, covfefe, covfefe. [Emphasis added.]

[36] Ms. Gold explains clearly her understanding that her videos are intended to make Mr. Baghai watch them and incur anxiety and fear. She enjoys the power that she can wield over the ostensibly powerful man to make him focus on her, spend money because of her, and fear for what she might do next.

[37] She is also equally clear that she wants to be paid the full amount of their counterclaim plus her full costs. Then she will discuss compensation for alleged injury to their family.

[38] In a video called “Dear Madam Chair”, Ms. Gold indicates that she blames M. Baghai and his alleged opening of their gate for mental health issues suffered by their teenaged daughter. She says:

I am also a mama bear on crack cocaine ready to metaphorically rip my landlord to shreds for the constant intimidation and harassment that put my daughter in the Brampton Civic Adolescent Psychiatric ward. My daughter suffered a severe mental breakdown due to our landlord's continuous efforts to intimidate us into deleting my videos that are not only my life's work but also evidence of his misrepresentation, breach of contract, and malicious intent ... We have been subjected to harassment intimidation fraud."

[39] I mention this as it seems to be an important motivator of the defendants’ anger. However, they presented no evidence about their daughter’s health, the cause of her health issues, or any link to the plaintiffs.

Defamation

[40] The court must refuse a request for an interlocutory injunction based on allegations of defamation where a defence of truth or fair comment is alleged unless it is clear on the face of the record that the defence must fail. Bagwalla v. Ronin et al. 2017 ONSC 6693 (Div. Ct.) at paras 19 and 21. This high bar properly represents the importance placed on freedom of expression in Canada. Moreover, where statements are made in relation to matters of public interest, the anti-SLAPP laws may preclude a claim and a request for an interlocutory injunction will also be viewed with stricter scrutiny. Sole Cleaning Inc. v. Chu, 2020 ONSC 7226.

[41] The Golds assert their complaints against Mr. Baghai as landlord as justification for their harassment. But they are remaining on the property without paying rent after agreeing in writing to leave. I do not see how their issues amount to a basis to stay or a basis to harass. But they may amount to a possible defence of truth to some of the allegations they make about Mr. Baghai as a landlord. However, they do not provide any pretense of a defence on the merits to claims of defamation for many of the most hyperbolic and profane allegations.

[42] I am cognizant of the discussion by the Court of Appeal in Levant v. Day, 2019 ONCA 244,

[22] On the other side of the balance, the quality of the expression and the motivation of the appellant are relevant to the measure of the public interest in protecting his expression: Pointes, at para. 94. This court in Pointes, at para. 94, held that “deliberate falsehoods, gratuitous personal attacks or vulgar and offensive language”, all part of the expression here, may reduce the public interest in protecting that speech, compared to cases where the message is delivered “without the lies, vitriol, and obscenities.”

[23] This is not to say that resort to some vulgar language will necessarily deprive expression of value worth protecting. However here the tweets posted are imbued with hyperbole and vulgar vitriol, and admittedly false in many respects such that there is little value in protecting their expression.

[43] This case involves a private dispute with no public interest component asserted (or realistically assertible). I would approach the assessment of defamation therefore in a broader way than in Sole Cleaning in view of the context as described in Levant.

[44] However, in my view, it would be very difficult for me to tease out from the Golds’ numerous videos precise words that may be defamatory which cannot possibly fall within a defence of justification or fair comment.

[45] In light of the view that I take of this matter below, it is not necessary for me to try to undertake this exercise.

Online Harassment

[46] The defendants have set out on a campaign to harass and intimidate Mr. Baghai. Whether they are trying to “speak truth to power” or to show a wealthy man that they will not be intimidated by his status and his use of legal process against them, Ms. Gold makes no bones about her purpose. She intends to keep uttering outrageous threats, insults, and slurs to so distract Mr. Baghai and to so upset him by her online behaviour that he will give the Golds what they want.

[47] Some of Ms. Gold’s posts are plainly defamatory. However, that is not the gravamen of the offensiveness of the posts generally. Many are plainly not defamatory. Some are just profane, threatening, and intimidating.

[48] This case involves the border between defamation, other torts, and the burgeoning tort of online harassment.

[49] Online harassment has become a major issue in Canadian society. In the ten days before I heard this motion, I dealt with four other civil cases in which relief was sought due to online harassment.

[50] Current law is not always adequate to deal with internet harassment. One problem with existing tort law is that, generally, torts require proof of physical or provable mental injury. The tort of intentional infliction of mental suffering, for example, requires proof that the plaintiff has suffered, “visible and provable illness.” See: Merrifield v. Canada (Attorney General), 2019 ONCA 205, at para. 45.[^1] Similarly, the tort of assault, requires a threat arousing fear of imminent harm. See: Larbi v. Canada Revenue Agency, 2021 ONSC 3240,

[51] Harassment is different. Its goal is to vex, to bother, to upset, to hurt feelings, and to intimidate. Section 10 (1) of the Human Rights Code, RSO 1990, c H.19 defines “harassment” as:

…engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome.[^2]

[52] Google.ca quotes the Oxford English Dictionary online resource, Oxford Languages, to define the verb, “harass” as

subject to aggressive pressure or intimidation[^3]

[53] It defines the verb, “intimidate” as

frighten or overawe (someone), especially in order to make them do what one wants[^4]

[54] The point of harassment is to cause mental suffering or to change another’s behaviour by subjecting them to unwelcomed torment. It may but need not lead to “visible and provable illness”. It may not create a threat of imminent physical harm. Ms. Gold mouthed many threats of physical harm. None was really “imminent”.

[55] Existing torts do not necessarily capture the mischief or harm intended by online harassment meant to intimidate.

[56] The use of the internet is integral to this new phenomenon. If the Golds had stood across the street from Mr. Baghai’s home and yelled or used a megaphone to blare the same things they say on the internet, the effect would be very different. Few would have heard her apart from Mr. Baghai and his family. While that may still be unsettling, it is of a whole different order of harm than using the internet to do the same thing.

[57] The law has recognized for many years the particular threat that internet harassment poses to a person’s reputation and well-being. In 2004, in Barrick Gold Corp. v. Lopehandia, 2004 CanLII 12938 (ON CA), at para. 34, Blair JA wrote:

…Internet defamation is distinguished from its less pervasive cousins, in terms of its potential to damage the reputation of individuals and corporations, by the features described above, especially its interactive nature, its potential for being taken at face value, and its absolute and immediate worldwide ubiquity and accessibility. The mode and extent of publication is therefore a particularly significant consideration in assessing damages in Internet defamation cases.

[58] That was long before we understood that social media algorithms deliberately foment controversy by re-publishing aggressive or outlandish statements regardless of their truth. It was long before the journalism profession had become so diminished in the public eye that many people seem to prefer “fake news” to journalistic integrity. It was before the risk that any common, non-famous Karen or Kevin could “go viral” and be cancelled – losing their jobs, their reputations, and the security of their families’ lives – based on committing some previously unknown form of heresy as asserted unilaterally by any number of modern day, self-appointed Senator Joseph McCarthys.

[59] The threat today of one’s life being turned upside down because of something someone else says on the internet that is heard or read by strangers half a world away is real and cannot just be dismissed or ignored like a person with a megaphone on the street.

[60] In Caplan v. Atas, 2021 ONSC 670 after eloquently making many of the foregoing points, my colleague Corbett J. accepted the following test for a new tort of internet harassment:

The plaintiffs propose, drawn from American case law, the following test for the tort of harassment in internet communications: where the defendant maliciously or recklessly engages in communications conduct so outrageous in character, duration, and extreme in degree, so as to go beyond all possible bounds of decency and tolerance, with the intent to cause fear, anxiety, emotional upset or to impugn the dignity of the plaintiff, and the plaintiff suffers such harm. [Notes omitted]

[61] Mr. Berlin submits that we need to take care in this new technological age to ensure that people who do not have a full grasp on the power and utility of the medium (i.e. older lawyers and judges) do not wade in too aggressively or too conservatively to stunt the legitimate development of society. I agree this far: I am concerned that the assessment of the “bounds of decency and tolerance” may be generational and cultural at least to some degree. We tolerate today far more deviance from received “common decency” than in prior generations to be sure.

[62] On the other hand, people who believe that online freedom of expression has no boundaries and that the internet is a free-for-all from which they may deliberately harm their neighbours offer nothing positive to society. Whether people harass others online to gain clicks (and thereby make money), to hurt, or to intimidate, the law must be able to respond with some boundary to protect and preserve countervailing values like peoples’ privacy, their right to go about their days unmolested, their right to health and to protect the health of their loved ones, and the rule of law.

[63] A society that does not protect its neighbours and its members from deliberately inflicted harm cannot remain a community. There have to be limits to internet harassment and the law has to be able to impose those limits.

[64] I am aided in this case by the little-known tort of intimidation. I am not finding a serious issue to be tried under this tort as it is not pleaded. Moreover, it deals with threats but not harassment. But it provides a direction that strikes me as relevant and helpful in relation to online harassment involving coercion. I raised and heard submissions from both counsel on the role of intimidation and the tort of intimidation during oral argument.

[65] In Central Canada Potash Co. Ltd. et al. v. Government of Saskatchewan, 1978 CanLII 21 (SCC) the Supreme Court recognized the tort of intimidation. At page 81 of the decision, Martland J. adopted the definition of this tort set out in Clerk & Lindsell on Torts (14th ed.) para. 802, p. 414:

A commits a tort if he delivers a threat to B that he will commit an act or use means unlawful as against B, as a result of which B does or refrains from doing some act which he is entitled to do, thereby causing damage either to himself or to C. The tort is one of intention and the plaintiff, whether it be B or C, must be a person whom A intended to injure.

[66] It is the essence of the tort then, is that a person threatens to take an unlawful act to cause someone else to do something he or she otherwise does not want to do. It is a civil form of extortion.

[67] The Supreme Court of Canada held the threat must be to take an unlawful act and the person threated must establish that he or she has sustained damage by the threat. I understand that the tort does not lie where the person threatened is required by law to do the act in any event.

[68] The Golds would argue that they are asking Mr. Baghai to pay amounts he is legally required to pay so the tort of intimidation would not apply. But, as noted above, I am not applying the tort of intimidation. It might not fit for that and other reasons. The focus of this discussion is on the use of internet harassment, including defamation, and threats of unlawful acts, to coerce or intimidate the victim into capitulation.

[69] In Rookes v. Barnard, [1964] A.C. 1129, [1964] 1 All E.R. 367, [1964] 2 W.L.R. 269 (H.L.), at p. 1188 AC, Lord Evershed wrote:

Intimidation of any kind appears to me to be highly objectionable. The law was not slow to prevent it when violence and threats of violence were the most effective means. Now that subtler means are at least equally effective I see no reason why the law should have to turn a blind eye to them. We have to tolerate intimidation by means which have been held to be lawful, but there I would stop. [Emphasis added.]

[70] The internet was not even conceived of in 1964 when Lord Evershed wrote these prescient words. I agree that the law has the means to respond to new forms of threats of unlawful conduct designed to coerce behaviour. While I am not sure of the limits or boundaries of decency and tolerance today for other forms of harassment, it is a small step from 1964 to today to recognize the same principle in a modern format.

[71] I am prepared to recognize that it is unlawful harassment, to use the internet in a manner that is outrageous in character, duration, and extreme in degree, with the intent to coerce behaviour by causing fear, anxiety, emotional upset, or impugning the dignity of the plaintiff online. In my view this is an incremental step in the development of the law that goes not further than required to deal with the case before me.

Analysis

[72] Mr. Berlin argues that it is Mr. Baghai who is harassing the defendants by bringing multiple pieces of litigation before the Landlord and Tenant Board and in this court. The defendants, he submits, are responding to the emotional upset Mr. Baghai is causing them and they are merely asserting their legal entitlement to succeed in the legal proceedings.

[73] In my view, there is a vital difference between use of legal process to harass and internet harassment. I accept that legal proceedings can be abused to vex or harass. Moreover, even properly brought proceedings can be extremely stressful and even overwhelming for some. But, judicial and quasi-judicial proceedings are bounded by the rule of law. Someone who believes that legal proceedings are being used improperly has the ability to go to the court or to the tribunal and obtain relief including indemnity for legal costs incurred.

[74] Rules 2.1.01, 21.01 (2)(d), 25.11, 37.16, and s. 140 of the Courts of Justice Act provide a robust scheme of protection against abusive legal proceedings. Internet harassment, by contrast, is an extra-judicial, self-help remedy, that is without effective policing apart from the rule of law as applied in a judicial proceeding.

[75] If one feels harassed by court proceedings, tell the court. It is not a fair or proper bases to justify one’s own campaign of online harassment.

[76] The overall thrust of the Golds’ posts are to make outrageous threats, defamatory statements, and gratuitous personal attacks, imbued with hyperbole, profane and offensive language, and vulgar vitriol with the intent to coerce Mr. Baghai into paying them and/or releasing them from liability by causing him fear, anxiety, emotional upset, and impugning his dignity online.

[77] The Golds may think that they are levelling the playing filed as they view Mr. Baghai as having the power of money and social standing to harass them through the courts. But following the rule of law cannot be equated with harassment. Moreover, “an eye for an eye” is not a defence in any event.

[78] This is a proper case for an interlocutory injunction. There are serious issues to be tried for the unlawful threats, defamation, and online harassment torts pleaded. As noted above I do not grant interlocutory relief for defamation per se as it is unnecessary in face of the relief being granted for unlawful threats and online harassment.

[79] I readily conclude that the plaintiffs will suffer irreparable harm if the Golds are not enjoined. The intended pain being inflicted by harassment and the internet risks identified in Barrack Gold and above are not readily capable of remedy in monetary damages. The balance of convenience also favours maintaining the status quo. The Golds have their remedies in this court and before the Landlord and Tenant Board. They lose no lawful rights on an injunction issuing as sought.

[80] I therefore continue the injunction granted on May 10, 2021 pending the final outcome of this proceeding or further order of the court. I also grant leave to amend the statement of claim and title of proceeding as proposed on consent.

[81] The plaintiffs seek their costs on a partial indemnity basis fixed at $29,000. Normally, when the court grants an interlocutory injunction, costs are reserved to the trial. This protects against the risk of a later determination that an interlocutory injunction was wrongly granted if the plaintiffs fail on the merits. However, here, the court is enjoining a deliberate course of harassment which the defendants tried to justify on this motion. In my view, it is fair and reasonable for the defendants to indemnify the plaintiffs for some costs for being required to move at this time. The defendants’ opposition left the plaintiffs no practical choice.

[82] There were no cross-examinations and part of this motion went on consent. In my view, the defendants should pay the plaintiffs’ costs of $15,000 all-inclusive on a partial indemnity basis at this time. This reflects a reasonable amount for the defendants to have expected to pay. This costs order is without prejudice to the plaintiffs’ right to seek a top-up to substantial or full indemnity after trial if so advised.

F.L. Myers J.

Date: July 2, 2021

[^1]: Whether that requirement may be modified given the lessening of the nature of proof required for mental injury in the tort of negligence is for another day. See: Saadati v. Moorhead, 2017 SCC 28. [^2]: TheLaw.com defines “harassment” as: Repetitive annoying, irritating conduct towards another that is designed to torment the victim. https://dictionary.thelaw.com/harassment/ [^3]: https://www.google.ca/search?q=defione+%5Bharass%5D&rlz=1C1GCEA_enCA922CA923&oq=defione+%5Bharass%5D&aqs=chrome..69i57.6511j0j4&sourceid=chrome&ie=UTF-8 [^4]: https://www.google.ca/search?q=define+%5Bintimidate&sxsrf=ALeKk01sC7GbBnBciqOl3K0vcYxnksp8qw%3A1624557956928&source=hp&ei=hMnUYKTpNdH1-gT976awBA&iflsig=AINFCbYAAAAAYNTXlAXLAPLvLvlKxa9Qz4ysLFuMIog-&oq=define+%5Bintimidate&gs_lcp=Cgdnd3Mtd2l6EAMyAggAMgQIABAKMgIIADICCAAyAggAMgQIABAKMgQIABAKMgQIABAKMgQIABAKMgQIABAKOgcIIxDqAhAnOgQIIxAnOgQIABBDOgUIABCxAzoHCAAQhwIQFFCkClj8J2DsLWgBcAB4AIABoQGIAbcPkgEENi4xMpgBAKABAaoBB2d3cy13aX