COURT FILE NO.: CV-19-00633610-0000

DATE: 20220818

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: AJITH SABARATNAM, Plaintiff

AND:

KANAPATHIPILLAI YOHANATHAN a.k.a. MOOKA TAMIL and MK TAMIL, 2137534 ONTARIO CORP. a.k.a. PARAII MEDIA GROUP and PARAII.COM, Defendants

BEFORE: VERMETTE J.

COUNSEL: James Lane, for the Plaintiff

Melvin Rotman, for the Defendants

HEARD: February 3, 2022

ENDORSEMENT

[1] The Plaintiff moves for summary judgment against the Defendants. He seeks damages for defamation in the amount of $250,000, as well as $50,000 in punitive, aggravated and exemplary damages. The Plaintiff also seeks a permanent injunction restraining the Defendants from making defamatory statements about him.

[2] Based on the evidence before me, the Plaintiff’s motion for summary judgment is granted in part, and the Defendants are ordered to pay to the Plaintiff $75,000 in general damages and $25,000 in punitive damages.

[3] The Plaintiff also moves for leave to amend his Statement of Claim to correct the name of the individual Defendant as it was revealed during his examination for discovery that his name is Tamil Mooka, not Mooka Tamil. This motion is unopposed and is granted.

I. FACTUAL BACKGROUND

1. The Plaintiff

[4] The Plaintiff is a member of the Tamil community in the Greater Toronto Area (“GTA”).

[5] From October 2001 to November 2017, the Plaintiff was an exclusive advisor for Sun Life Financial Distributors (Canada) Inc. and Sun Life Financial Investment Services (Canada) Inc.

[6] From July to November 2019, i.e. the time period during which the alleged defamatory statements were published, the Plaintiff was self-employed and was primarily selling life insurance products through a brokerage, InsureU.

[7] The Plaintiff’s clientele is made up almost entirely of individuals in the Tamil community.

[8] The Plaintiff is highly involved in the Tamil community in the GTA, which is a source of business, friendship and kinship for him. He was a member of the board of directors of the Canadian Tamils’ Chamber of Commerce (Ontario) (“CTCC”) between 2011 and 2017. He served as CTCC’s Vice-President Community Services in 2012-2013, and was elected President for the 2015-2017 term.

[9] In June 2018, the Plaintiff co-founded Mr. Tamil Canada Inc. and served as its first President until March 2021. Mr. Tamil Canada Inc. was created to bring awareness and support within the Tamil community in Canada and abroad for Tamil Canadian men suffering from mental health issues.

[10] The Plaintiff is an active volunteer with the Heart and Stroke Foundation of Canada and The Scarborough and Rouge Hospital Foundation. He is also involved in a number of other causes related to the Tamil community in Canada and Sri Lanka. The Plaintiff still has strong connections with Sri Lanka and the Tamil community in that country. In his affidavit, he states that he works with Canadian and Tamil business leaders and officials to maintain and make connections between the Tamil community in Sri Lanka and the Tamil diaspora in Ontario, both for business and charitable purposes.

2. The Defendants

[11] The Defendant Tamil Mooka was known as Kanapathipillai Yohanathan until he legally changed his name to Tamil Mooka in 2016. He resides in Brampton, Ontario, and is a member of CTCC. Mr. Mooka works as a cook for City of Toronto long-term care homes. In addition, he is the owner and operator of the Defendant Paraii Media Group (“PMG”), which he registered in 2017.

[12] PMG runs the website paraii.com (“Website”). At the time of the hearing, the Website was described as being “Under construction” and its contents could not be accessed. According to Mr. Mooka, the Website went down in the fall of 2020, but he does not know why. The Website was not taken down on purpose.

[13] PMG has no employees. Mr. Mooka describes himself as PMG’s “entire media activities”, and as the director, writer and organizer. However, PMG receives assistance with respect to website design from some people on a “friendly” basis, sometimes for money.

[14] Mr. Mooka posts his own articles on the Website and is the only author of the Website’s content.

[15] Mr. Mooka and the Plaintiff do not know each other well. They have attended the same events on occasion, and they had one telephone conversation in 2018, which was unrelated to CTCC and the issues set out in the Statement of Claim.

3. The Articles and WhatsApp Messages

[16] On July 7, November 6, 7, 9 and 10, 2019, Mr. Mooka published a series of articles about the Plaintiff on the Website (“Articles”). Among other things, the Articles allege that the Plaintiff engaged in criminal, fraudulent and improper conduct, including the misappropriation of funds. The Articles are written in Tamil, but the Plaintiff has provided a certified translation of the Articles from an accredited Tamil translator and interpreter.

[17] The Article dated July 7, 2019 is entitled “The cover up of the bungling of the accounts of the CT Chamber of Commerce, by the former President Ajith Sabaratnam, the blame is on the Administration of the C.T. Chamber of Commerce administrators”. The following header also appears at the top of the webpage, with the date of November 18, 2019: “To cover-up all the fraudulent accountings of the former President of the CTCC Ajith Sabaratnam, the C.T.C. of commerce…” The July 7, 2019 Article discusses, among other things, the alleged failure of the Plaintiff to produce financial documents relating to the period when he was President of CTCC.

[18] The Article dated November 6, 2019 is entitled “The Northern Province Governor, who does not know anything of Ealam politics, is with some Sinhala boot-lickers in Canada”. The Article contains a picture of four men, including the Plaintiff and the Governor of Sri Lanka’s Northern Province. The following statement appears under the picture: “Northern Province Governor, who had come to Canada, had joined hands with some cheats who had amassed wealth cheating the innocent Tamils in Canada and had enjoyed life here and had gone back.”

[19] Two Articles were published on November 7, 2019. The first one is entitled “Has the money CAN $928,388.00, belonging to the Canadian Tamil Chamber of Commerce, been swindled by Ajith Sabaratnam?” The following header also appears at the top of the webpage, with the date of November 18, 2019: “Did Ajith Sabaratnam defraud CAN $928,388.00 from the Canadian Chamber of Commerce?” This Article includes a picture of the Plaintiff as well as the following paragraph:

Ajith Sabaratnam is a senseless Tamil, underdog of the fanatical Sinhala racial Government. He has forgotten the history of the Tamils being eliminated, over a period of 400 years. The bandicoot rat that had robbed the Tamils of their money in Canada is, Ajith Sabaratnam.

[20] The second Article published on November 7, 2019 is entitled “Why had Akith Sabaratnam, still not been removed from the basic life membership of the CTC Commerce?” This Article only contains one paragraph, which reads as follows:

Why are the administrative board of the Canadian Tamil Chamber of Commerce, still not cancelled the membership of Ajith Sabaratnam, who had been the President of the CTCC and had swindled it financially and had not submitted the correct accounts or submitted any documents substantiating the accounts?

[21] The Article dated November 9, 2019 is entitled “If an order from the Courts is received, on the misappropriation of the CAN $928,288.00, only then can the fraud in the accounts of the Canadian Tamil Chamber of Commerce organization could be dismissed. In the last general meeting of August 2019, Santha had openly stated this.” This Article largely repeats the contents of the July 7, 2019 Article. The following can be read under the text of the Article on the printout of the Article from the Website: “315 total visits, 3 visits today”. It appears – but it is not certain – that the Article was printed on November 18, 2019.

[22] The Article dated November 10, 2019 is entitled “Did Nilani Gunarajah and Moon Mahalingam sign on a blank cheque, at the insistence of the earlier President of the C.T.C. of Commerce, Ajith Sabaratnam?” It includes the following paragraph:

We had got information from some friends of the members of the Canada Tamil Chamber of Commerce, that Ajith Sabaratnam, had acted against the CTCC constitution and had forced the Lawyer Nilani Gunarajah and Moon Mahalingam, to sign on the blank cheque.

[23] In addition, two WhatsApp messages that contain allegations of financial wrongdoing against the Plaintiff with respect to Mr. Tamil Canada Inc. and describe him as a “Sinhala underdog” were allegedly sent to an unidentified list of recipients in December 2019 (“WhatsApp Messages”). The first message was signed by “Thiru”.

[24] The original WhatsApp Messages are not before me. The only evidence before the Court are e-mails sent to the Plaintiff that contain the text of the WhatsApp Messages, written in Tamil. Certified translations in English were provided by the Plaintiff.

4. Notice of Libel

[25] At the end of November 2019, the Plaintiff served a Notice of Libel on the Defendants which asked, among other things, that the Articles be removed within 24 hours of receipt of the Notice and that an apology be delivered within one week.

[26] After receiving the Notice of Libel, the Defendants did not offer to apologize to the Plaintiff, nor did they offer to retract anything. Instead, Mr. Mooka sent the following letter to the Plaintiff’s lawyer on December 4, 2019 on behalf of PMG:

I thank you for your letter.

Please find below my response to your letter.

The articles attached to your letter were written based on the facts supported by documents provided by the Board of Canadian Tamils Chamber of Commerce (CTCC) during the members meetings. These articles are written to protect and preserve the integrity of members and the organisation including the reputation and standing of CTCC with sponsors and the business community.

Paraii Media Group do [sic] not and will not write any article with malice towards any individual/s or with any intention to bring down the reputation of anyone including Mr. Ajith Sabaratnam.

Paraii Media Group understands its role and responsibilities as a media group and it is known for bringing out information to the public based on evidence and puts the interests of every citizen of Canada under Canada’s charter of rights and freedoms.

Parali Media Group is a member of the following:

• Canadian Tamils Chamber of Commerce

• National Ethnic Press and Media Council of Canada

• United States Press Agency

Paraii Media Group was recently (November 15, 2019) recognized with an AWARD for its dedication and contributions to the Tamil Community in Canada by National Ethnic Press and Media Council of Canada.

It is very unfortunate that Mr. Ajith Sabaratnam has chosen not to contact Paraii Media Group directly to resolve the matter instead chosen to threaten Freedom of Press by serving a threatening letter through your firm. We are always open to providing Mr. Sabaratnam an opportunity to address his concerns on our media and he could either refute or accept the content in the articles.

Regretfully, your client - Mr. Ajith Sabaratnam has wrongfully assumed that these articles refer to him as dishonest, fraudulent, engaged in criminal behaviour, swindled, corrupt as mentioned in your letter.

In the best interest of all parties involved in the subject matter, Paraii Media Group is offering Mr. Sabaratnam the opportunity to be interviewed where he can produce supporting documents related to the accounts of CTCC for 2015-2016 and 2016-2017. The date, time and venue for the interview can be mutually agreed and this offer to be interviewed from Paraii Media Group is good until December 31, 2019.

Furthermore, Paraii media group is willing to consider the removal of articles as requested by Mr. Sabaratnam and it is subject to a compensation to Paraii Media Group mutually agreed by both parties.

Paraii Media Group reserves the right to publish to its local and international audience/readers all the correspondence with Mr. Sabaratnam if the offer to be interviewed is not accepted on or before December 31, 2019.

Please be advised that Paraii Media Group will continue to exercise its fundamental rights i.e.: Freedom of Press within the guidelines of the applicable law and would not hesitate to make public any threats from Mr. Sabaratnam to suppress the Freedom of Press.

5. The action

[27] This action for defamation was commenced on December 30, 2019. The Plaintiff pleads that the Articles, through the combination of words and their arrangement, produced defamatory statements that, in their entirety, meant and were understood to mean that the Plaintiff:

(a) was dishonest;

(b) was fraudulent;

(c) was corrupt;

(d) engaged in political corruption for personal financial benefit;

(e) engaged in criminal behaviour;

(f) swindled and/or defrauded the CTCC by misappropriating $928,388.00 in funds belonging to the CTCC;

(g) was directed by or under the control of the Sinhalese government;

(h) was an agent of the Sinhalese government;

(i) supported or endorsed the elimination of Tamils;

(j) was anti-Tamil;

(k) turned a blind eye to the suffering of Tamils;

(l) was disloyal to Tamils for financial gain;

(m) was a “bandicoot rat that had robbed the Tamils of their money in Canada”;

(n) had amassed wealth by cheating innocent Tamils in Canada;

(o) attempted to suppress information about CTCC’s financial statements/accounts while he was President of the organization;

(p) had hidden CTCC financial accounts and reports; and

(q) acted against the CTCC constitution in forcing Dilani Gunarajah and Moon Mahalingam to sign a blank cheque.

[28] The Plaintiff states the following in his Statement of Claim with respect to the context in which some of the statements in the Articles should be interpreted:

Like the Defendants, members of the Tamil community who have viewed the Articles have knowledge of the extremely fraught relationship between Tamils and Sinhalese in the wake of the deadly Sri Lankan Civil War and its aftermath, where many Tamils were killed by the Sinhalese. Any allegation of supporting or associating with the Sinhalese government would be viewed by the Tamil community as highly offensive and inflammatory. Members of the Tamil community who have viewed the Articles would understand the accusation that Mr. Sabaratnam is a Sinhalese “bootlicker” to mean that he supports the Sinhalese government and is disloyal to the Tamil community.

Likewise, members of the Tamil community who have viewed the Articles would understand that the term “bandicoot rat” in Tamil as an insult meaning a “swindler or crook”.

[29] The Plaintiff also alleges that after the Defendants were served with the Notice of Libel at the end of November 2019, they published, caused to be published and/or disseminated further defamatory statements through WhatsApp. The Plaintiff pleads that the WhatsApp Messages are defamatory of him.

[30] The Plaintiff states that the words complained of in the Articles and WhatsApp Messages, as well as the repetition of similar words, have done significant damage to his reputation, both personally and professionally. The Plaintiff further states that he has suffered and will continue to suffer damages “through the loss of his standing in the community and through the public’s odium, ridicule and contempt as a result of the publication of the words complained of in the Articles and [WhatsApp] Messages.”

[31] The Plaintiff alleges that the Defendants have aggravated the damages caused to the Plaintiff by, among other things, publishing the words complained of maliciously and in bad faith, with knowledge that they were false or with reckless disregard for their truth or falsity. The Plaintiff also seeks punitive and exemplary damages.

[32] In their Statement of Defence, the Defendants state that the words contained in the Articles and WhatsApp Messages are true or substantially grounded in truth. They also state that the words “were honestly held opinions based on facts supported by documents provided to its members by the CTCC and documents obtained by the Defendants from other sources, and the alleged defamatory words were written in good faith within their ordinary meaning without malice.” The Defendants plead that the impugned publications and words merely questioned the Plaintiff’s financial competence in his capacity of President of CTCC.

[33] In the alternative, the Defendants claim qualified privilege over the contents and publication of the Website, which they describe as an online publication that serves and provides news and information for the Tamil community in the GTA. They also plead that the impugned publications concerned matters of public interest to the Tamil community. They state the following:

The Defendants plead that given the ostensible irregularities found in the financial summaries, and the refusal to conduct an audit by the Plaintiff, it was fair comment by the Defendants to question the lack of accountability and transparency of the CTCC, as well as the financial competency of the Plaintiff, in the impugned publications. The Defendants further plead that it was reporting on matters of public interest and that the impugned publications were responsible communication in mass media.

[34] The Defendants allege that the English translations provided by the Plaintiff are incorrect and inaccurate. However, the Defendants have not at any time provided certified translations that are different from the Plaintiff’s certified translations and that support the Defendants’ allegation.

6. Evidence on the motion

[35] Both the Plaintiff and Mr. Mooka have provided affidavit evidence in support of their respective positions. The Plaintiff was cross-examined on his affidavit, but Mr. Mooka was not. However, the Plaintiff relies on the transcript of the examination for discovery of Mr. Mooka.

[36] During his examination for discovery, Mr. Mooka gave the following evidence regarding the source of his information for the first Article that he wrote and published in July 2019:

114. Q. What was the source of your information for your article?

A. This is information forwarded by the CTCC’s members.

115. Q. Particularly which members?

A. When I go to those CTCC meetings, and some of members whom I don’t know, they used to take me aside and provide those information. Then I asked them to give the proof for those things. But they don’t disclose that at the meetings, but when I go back to the following meetings, they put those things, information in an envelop [sic] and write for Paraii Media, and for me to take it.

116. Q. What members did you speak to specifically?

A. Those people whom I don’t know.

117. Q. You don’t know their names?

A. I don’t know names.

118. Q. You don’t have any interview notes?

A. No.

119. Q. Are they reliable?

A. Where they have given the -- they have forwarded the proof.

120. Q. For this article, what documents did you receive that were proof, of you’re saying here?

A. Based on all those proofs, the articles forward [sic] to me.

121. Q. What particular documents did you rely on for this article?

A. This is a -- this article is an abstract of everything. It contains from [sic] all the information.

123. Q. The documents that you received that provide the source of your information for this article, are all contained in your Affidavit of Documents?

A. Yes.

124. Q. There are no other documents?

A. No.

125. Q. You don’t have any notes from interviews that also substantiate what’s said here?

A. It’s not a formal interview, it’s just call me aside and to talk to me.

132. Q. In the article, I’m going to read a little bit more of it to you, you say, “To cover up the bumbling [sic] of the accounts of the CT Chamber of Commerce by the former president Ajith Sabaratnam, the blame is on the administration of the CT Chamber of Commerce administrators.” What facts are you relying on to say that the accounts were bumbled [sic]?

A. Based on those things which I have given to you, this article is written.

133. Q. What things specifically?

A. It’s the -- based on the complaints from the members that the CTC’s administration is not taking care of the account, it’s in a not proper way.

134. Q. From unnamed members?

A. Yes.

135. Q. The next line down it says, “To cover up all the fraudulent accountings of the former president of the CTC.”

A. Whatever the members had told me, I had put those things.

136. Q. This article is saying that Ajith Sabaratnam engaged in fraudulent accounting.

A. I have conveyed the message given by those Canadian Tamil members of the Canadian -- I conveyed them just from those members of the Canadian Tamil Congress.

137. Q. The article also says there’s been a cover-up of the accounting.

A. Those are the people who told those things.

138. Q. But this is what the article that you published that it says that.

A. Whatever they told me, I wrote and published. That’s my – that’s the duty of a media personality, and to obtain information from the public and publish those things and stay in the side of the public.

[37] Later in his examination, Mr. Mooka stated that before the first article was published, he communicated with a founding member of CTCC, Mr. Esa Para Esananda. Mr. Mooka said the following:

No, we did not exchange information. I gave whatever I have with me, and I passed to him and I asked him to verify those things. […] Before the – I gave those evidences [sic] and then I – after the meet with Mr. Esa Para and after confirming with him only, I publish this article.

[38] This evidence is unclear as to what exactly Mr. Mooka gave to Mr. Esananda for him to verify, and what exactly Mr. Esananda confirmed to Mr. Mooka.

[39] Mr. Mooka indicated that when he spoke with Mr. Esananda before publishing the first Article, he knew that Mr. Esananda was involved in litigation against the Plaintiff and that was the reason that he approached him.

[40] Mr. Mooka stated that he tried to call the Plaintiff three times before publishing the first Article, but there was no answer each time. He did not remember the exact date(s) on which he called the Plaintiff, and he did not state that he left a voicemail message to the Plaintiff. Mr. Mooka did not send anything in writing, via e-mail or otherwise, to the Plaintiff. The Plaintiff’s evidence is that: (a) he does not recall ever receiving a call or a voicemail message from Mr. Mooka asking him for his position or comment on allegations that were going to be published by PMG; and (b) he did not receive an email or any other communication from PMG prior to the publication of the Articles.

[41] When asked whether it was his position that the statements in the Articles were true and whether he believed that there had been a cover-up of the bungling of CTCC’s accounts, Mr. Mooka provided non-responsive answers and simply said that this was what he was told by some members of the CTCC.

[42] Mr. Mooka’s evidence with respect to his sources of information for the other Articles was that they were basically the same as for the first Article. He stated that because the Plaintiff did not answer his calls before the first Article, he did not call him again before publishing the subsequent Articles in November 2019.

[43] In his affidavit, Mr. Mooka apologizes to the Plaintiff for publishing the Articles without giving him an adequate opportunity to respond. Mr. Mooka also makes some admissions. He states the following:

During the course of this litigation, I have come to realize it was imprudent for me to editorialize or indulge in personal opinions with respect to the matters written in the impugned articles. It was a lapse of judgment for me to take the members’ personal opinions about the Plaintiff, and his alleged misconduct as President, without giving the Plaintiff adequate opportunity to respond before publishing the impugned articles and I apologize for same. I should have been strictly factual and allowed readers to draw their own conclusions.

I also acknowledge that in my exuberance I stated negative comments that were told to me which cannot be proven. At best, it was improvident gossip.

[44] During his examination for discovery, Mr. Mooka was unable to provide information regarding how much traffic the Website received or the number of views for the Articles.

[45] While Mr. Mooka admitted writing and publishing all of the Articles, he denied having any connection with the WhatsApp Messages and knowing anything about them. During his cross-examination, the Plaintiff stated that he was not sure whether the Defendants had anything to do with the WhatsApp Messages, but he expressed the view that the writing was similar and that “it came all at the same time.”

[46] As set out above, Mr. Mooka expressed the view during his examination for discovery that the documents that he received from unknown CTCC members provide support and evidence for the statements contained in the Articles. He also stated that all of these documents were contained in his Affidavit of Documents. The Defendants’ Affidavit of Documents lists only 15 documents. Most of these documents relate to various CTCC meetings. It is apparent from the documents – and this was admitted by the Plaintiff during his cross-examination – that factions have developed within CTCC.

[47] The Plaintiff’s evidence is that in addition to being posted on the Website, the Articles were posted on Facebook and WhatsApp at around the time that they were published. However, there is no documentary evidence of such postings. Further, there is no evidence as to who posted the Articles and whether PMG or any of the Defendants have a Facebook page or a WhatsApp account.

[48] The Plaintiff states the following in his affidavit regarding the impact of the Articles:

I received a number of calls from people who know me very well and were concerned upon seeing the Articles on social media. The callers included family members, close friends and people directly involved with CTCC who were dealing with the disruptive activities at that organization caused by the same rumours and allegations about CTCC. In addition to people in Canada, I got calls from people in Sri Lanka, Australia, England and The Netherlands about the article.

It troubles me a great deal that the only people who contacted me about the Articles are people who know me well and were confident in calling me to ask what was going on. I believe that it is only reasonable to assume that a great many other people saw it who were not as comfortable raising such difficult questions, or did not have a deep enough personal concern about me to make the effort. It also worries me a great deal knowing, as I do, how extensively gossip travels within the Canadian Tamil community, especially gossip of a scandalous nature. I can say with confidence that articles of this sort about a prominent member of the community like myself would certainly be much discussed within the community.

It is difficult to say how much my earnings were impacted by the negative publicity caused by the Articles because other events occurring around the same time had a negative impact on my earnings. However, my income from the sale of insurance and mutual funds dropped very significantly starting from the time the first Article was published. Quantification of the amount attributable to the Articles is impossible to establish with any certainty.

What I can say with certainty is how awkward and uncomfortable my work in sales became following publication of the Articles. My work as an advisor and sales representative for financial services products depends on establishing and maintaining a relationship of trust. I estimate that 99% of my clients are from the Canadian Tamil community. I found myself constantly wondering if the clients and potential clients who I was meeting with had read or heard about the Articles.

However, I felt that I could not raise the issue. Focusing on dispelling negative misperceptions about myself would be terribly disruptive to meetings arranged for the purpose of learning about and responding to client needs. If the client or prospective client did not know about the article, I would only be spreading its impact if I raised the subject myself. Somewhat against my instincts, I ended up dealing with it by not dealing with it. This fear, discomfort and embarrassment continues very much to this day.

[49] The reference in the Plaintiff’s affidavit to “other events occurring around the same time [that] had a negative impact on [his] earnings” appears to be a reference to a letter on Sun Life Financial letterhead sent by Cynthia Henry, Senior Investigator, Individual Compliance in early November 2017 to the Plaintiff’s clients at Sun Life Financial (“Sun Life Letter”). The Sun Life Letter reads as follows:

When you began your relationship with us, you were given a brochure called “A clear connection”. This important document explained that the Sun Life Financial group of companies – and our entire team including Sun Life Financial advisors – are committed to the highest standards of professional ethics. We take great care to protect personal information entrusted to us and ensure the information we collect is accurate, up to date, confidential and secure.

As you may know, your Sun Life Financial advisor, Ajith Sabaratnam, is engaged in an outside activity in which he acts as the current President of the Canadian Tamil Chamber of Commerce (CTCC). Recently, it has come to our attention that Mr. Sabaratnam has been using his Sun Life e-mail address to conduct business related to the CTCC, without consent. It is important that you understand that any activities related to the CTCC and/or Mr. Sabaratnam’s role as President of the CTCC or otherwise are not associated with his role as a Sun Life Financial advisor. This is especially relevant with regards to any CTCC fundraising and/or sponsorship activities, and any potential conflict of interest that Mr. Sabaratnam’s knowledge of your personal finances may bring.

In addition, it’s important to note that Sun Life Financial advisors are not permitted to engage in personal financial dealings with clients, including borrowing or lending money, business partnerships, etc. Please contact me if you have had any personal financial dealing with Mr. Sabaratnam.

If you have any questions or concerns, please contact me directly at […]. Thank you for your continued business.

[50] As stated above, this letter was sent to the Plaintiff’s clients at Sun Life. The Plaintiff had approximately 1,500 clients at the relevant time.

II. DISCUSSION

1. Whether this is an appropriate case for summary judgment

[51] The first issue to determine is whether the case at bar is an appropriate case for summary judgment.

[52] Both the Plaintiff and the Defendants agree that this is an appropriate case for summary judgment.[^1] I also agree.

[53] The Plaintiff and Mr. Mooka have sworn affidavits, and I have the transcript of the examination for discovery of Mr. Mooka and the transcript of the cross-examination of the Plaintiff. A careful review of the evidence that is before the Court reveals that there is no meaningful dispute with respect to material facts.

[54] While Mr. Mooka has not adduced evidence on certain points, including the truth of the statements in the Articles, he had the opportunity to do so. He also had the opportunity to cross-examine the Plaintiff. I note that on a motion for summary judgment, the court is entitled to assume that the parties have advanced their best case and that the record contains all the evidence that the parties will present at trial. Thus, if the moving party meets the evidentiary burden of producing evidence on which the court could conclude that there is no genuine issue of material fact requiring a trial, the responding party must either refute or counter the moving party’s evidence or risk a summary judgment. See Soliman v. Bordman, 2021 ONSC 7023 at para. 133 (“Soliman”).

[55] In light of the foregoing, I conclude that there is sufficient evidence before the Court to fairly and justly adjudicate the dispute between the parties, and that it is appropriate to make dispositive findings on this motion. Providing a timely, affordable and proportionate procedure to the parties is also an important consideration in this case.

2. Tort of defamation

[56] A plaintiff in a defamation action is required to prove the following elements to obtain judgment and an award of damages:

(a) that the defendant made a statement;

(b) that the words of the statement were defamatory, in the sense that they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person;

(c) that the words in fact referred to the plaintiff; and

(d) that the words were published, meaning that they were communicated to at least one person other than the plaintiff.

See Grant v. Torstar Corp., 2009 SCC 61 at para. 28 (“Torstar”) and Soliman at para. 148.

[57] If these elements are established on a balance of probabilities, falsity and damage are presumed and the onus shifts to the defendant to advance a defence in order to escape liability. The tort of defamation is one of strict liability. See Torstar at paras. 28-29 (“Torstar”).

[58] Based on the evidence before me, the Plaintiff has proved all the required elements with respect to the Articles. This is not really disputed by the Defendants.

[59] However, the Plaintiff has not established that the Defendants or any of them made the statements in the WhatsApp Messages or published them. Although there may be some similarities between the Articles and the WhatsApp Messages with respect to the “writing style”, the WhatsApp Messages raise alleged improprieties regarding Mr. Tamil Canada Inc. while the Articles focus on CTCC. I also note that one of the WhatsApp Messages is signed “Thiru”, which is the last name of one of the persons who, along with Mr. Esananda and others, have challenged and criticized the actions of the board of directors of CTCC. As admitted by the Plaintiff during his cross-examination, there are factions within CTCC and the Tamil community. The wording of the second WhatsApp Message suggests that it is written by the same person as the first one. There is no evidence before me that Mr. Thiru has denied being the author of the WhatsApp Messages, as he appears to be. More importantly, there is no evidence before me connecting the Defendants to the WhatsApp Messages. Therefore, I dismiss the Plaintiff’s motion as it relates to the WhatsApp Messages.

[60] I now turn to the defences raised by the Defendants with respect to the Articles.

3. Defences to defamation claim

[61] The Defendants’ focus on this motion was on the issue of damages. However, given that certain defences were raised in the Statement of Defence and in response to the motion, I will review them.

[62] For the purpose of my analysis, I rely on the certified translations that were adduced in evidence by the Plaintiff. While the Defendants previously raised issues with respect to these translations (including in their Statement of Defence and during Mr. Mooka’s examination for discovery), this was done in a vague and unsubstantiated manner, and the Defendants have failed to put in evidence different certified translations supporting their position. Given this, this Court is entitled to assume that the certified translations before it are accurate.

a. Truth or justification

[63] To succeed on the defence of justification, a defendant must adduce evidence showing that the statement was substantially true: see Torstar at para. 33.

[64] In this case, the Defendants have not adduced any evidence supporting the substantial truth of the defamatory statements in the Articles, including the statements about the Plaintiff misappropriating money from CTCC, being responsible for any financial impropriety in relation to CTCC, or stealing money from anyone. The statements appear to be based on speculation on the part of third parties, and the Defendants have not taken any steps to confirm the truth of these statements, either before or after their publication.

[65] The burden of persuading the court, through evidence, that there is no genuine issue requiring a trial rests with the moving party. This is the case even with respect to issues that a party does not have the onus to prove at trial: see, e.g., Sanzone v. Schechter, 2016 ONCA 566 at paras. 24-25, 27, 29-30. This burden shifts to the responding party only after the moving party has discharged its evidentiary burden of establishing that there is no genuine issue requiring trial. See Kinectrics Inc. v. FCL Fisker Customs & Logistics Inc., 2020 ONSC 6748 at para. 5.

[66] The Defendants argue that the Plaintiff has not stated clearly in his affidavit that the statements in the Articles are false. While this is technically true for the Articles, the Plaintiff’s affidavit includes a clear statement that the WhatsApp Messages contain false allegations. With respect to the Articles, it is my view that when one considers the Plaintiff’s evidence in its entirety, including his evidence on cross-examination, it is clear that he denies the truth of the statements in the Articles, including any financial impropriety and misappropriation of funds. Further, and in any event, once a plaintiff has established the elements of the tort of defamation, the words complained of are presumed to be false: see Torstar at para. 28 and Bent v. Platnick, 2020 SCC 23 at para. 107 (“Bent”).

[67] I also note that Mr. Mooka attached to his affidavit the audited financial statements of CTCC for the years 2014 to 2020, and that the Plaintiff referred to the audited financial statements during his cross-examination. The auditors’ opinion is the same for all the years for which financial statements were produced, including the years during which the Plaintiff was President. Again, there is no evidence of financial impropriety.

[68] Given the presumption of falsity, the Plaintiff’s evidence considered in its entirety, the difficulty for the Plaintiff to prove a negative (i.e. the absence of misappropriation or fraud), and the fact that the ultimate burden to prove the defence of justification is on the Defendants, I am of the view that, in the circumstances of this case, the Plaintiff has met his burden under Rule 20 to show that there is no genuine issue requiring a trial with respect to the defence of justification, and that the burden shifted to the Defendants to show that there was a genuine issue requiring a trial.

[69] In their Factum, the Defendants argue that it is not certain that the statements in the Articles are untrue and that additional evidence may exist. They state the following:

[…] However, it is not certain here that the Defendants will be unable to support a defence of justification, because the Court is unable to determine based on the evidence before it, and which evidence is only in the possession of the Plaintiff, whether or not the Plaintiff actually did wrongfully take money from the CTCC not for profit organization. If the evidence after a trial examination does indeed indicate evidence of financial wrongdoing, this case would have a different outcome than the one which is proposed before this motion court.

A motion court is not well positioned to interpret evidence which is only in the possession of a plaintiff, but which evidence is also not before this court, as to whether or not a justification could be made out based on a fuller evaluation of the evidence. Here, the Plaintiff in his Affidavit did not say whether or not he misappropriated funds from the CTCC. While he may not be guilty of any wrongdoing, how could this Court know this with certainty if the Plaintiff does not answer to it? Respectfully, there us [sic] some reasonable doubt as to whether this Court can say with requisite certainty, now, that the Plaintiff did not in fact wrongfully take or use funds from the CTCC. Accordingly, it is not unreasonable to hold that it cannot be said that the defence of justification pled by the Defendants, must surely fail.

[70] I have addressed above the argument that the Plaintiff did state clearly in his affidavit that the statements in the Articles are not true. As for the Defendants’ argument that there could be more evidence at trial, this argument runs contrary to the rules that apply to both parties on a motion for summary judgment. A responding party cannot stave off a summary judgment motion by saying that they will produce more evidence at trial. As stated above, a responding party must put its best foot forward in response to the motion for summary judgment, and the summary judgment motions judge is entitled to assume that the responding party has led all of the evidence it would lead at trial. See M & P Tool Products v. Lawson, 2020 ONSC 8000 at para. 42 and Hannivan v. Wasi, 2020 ONSC 1060 at para. 20; aff’d 2021 ONCA 187. Further, the Defendants conducted a cross-examination of the Plaintiff and had the opportunity to ask him questions about the truth of the statements in the Articles.

[71] The Defendants’ argument about the alleged uncertainty regarding any misconduct on the part of the Plaintiff strongly suggests that at the time of the publication of the Articles, it was not possible for the Defendants to be reasonably satisfied that the statements in the Articles were true. This is a relevant consideration for some of the other defences discussed below.

[72] Given the total absence of evidence supporting the truth of the serious allegations that were made against the Plaintiff in the Articles, the Defendants have failed to establish that their defence of justification raises a genuine issue requiring a trial.

b. Responsible communication on matters of public interest

[73] The defence of responsible communication on matters of public interest has two essential elements: (1) the publication must be on a matter of public interest; and (2) the defendant must show that publication was responsible, in that they were diligent in trying to verify the allegation(s), having regard to all the relevant circumstances. The second element, i.e. the diligence of the defendant, will be assessed having regard to the following factors:

(a) the seriousness of the allegation;

(b) the public importance of the matter;

(c) the urgency of the matter;

(d) the status and reliability of the source;

(e) whether the plaintiff’s side of the story was sought and accurately reported;

(f) whether the inclusion of the defamatory statement was justifiable;

(g) whether the defamatory statement’s public interest lay in the fact that it was made rather than its truth (“reportage”); and

(h) any other relevant circumstances.

See Torstar at paras. 98, 126.

[74] The Plaintiff does not deny that articles addressing the financial governance of CTCC are a matter of public interest. However, his position is that the statements in the Articles were not responsibly communicated. I agree.

[75] In my view, the evidence before me – particularly the evidence given by Mr. Mooka during his examination for discovery – shows that the Defendants were not diligent in trying to verify the allegations against the Plaintiff. While Mr. Mooka stated during his examination for discovery that the information that he received from unknown members of CTCC was confirmed by documents that they later sent to him, the documents in issue, which are all listed in his affidavit of documents, do not support the serious allegations contained in the Articles. As for Mr. Mooka’s consultation with Mr. Esananda, it is insufficient to constitute diligence. First, it is unclear whether Mr. Esananda only confirmed the authenticity of the documents that Mr. Mooka had received or whether Mr. Esananda confirmed the accuracy of the allegations contained in the Articles. Second, if it is the latter, then this was insufficient given: (a) the absence of evidence that Mr. Esananda had the necessary knowledge to confirm the allegations; (b) the seriousness of the allegations; and (c) the fact that Mr. Mooka knew that Mr. Esananda was adverse to, and engaged in litigation against, the Plaintiff.

[76] In addition, the matter was not urgent and the Plaintiff’s side of the story was not sought. Even if I accept Mr. Mooka’s evidence that he tried to call the Plaintiff three times before publishing the first Article, this is insufficient given the seriousness of the allegations and the fact that there was no urgency. Mr. Mooka should have left a message for the Plaintiff and tried to contact him by e-mail or in writing. Further, the evidence is clear that Mr. Mooka did not attempt to contact the Plaintiff before publishing any of the subsequent Articles. I note that Mr. Mooka admits in his affidavit that he did not give the Plaintiff an adequate opportunity to respond to the allegations that were published.

[77] In light of the foregoing, the defence of responsible communication on matters of public interest does not raise a genuine issue requiring a trial.

c. Qualified privilege

[78] An occasion of qualified privilege exists if a person making a communication has an interest or duty – legal, social, moral or personal – to publish the information in issue to the person to whom it is published and the recipient has a corresponding interest or duty to receive it. Qualified privilege attaches to the occasion upon which the communication is made, and not to the communication itself. Where the occasion is shown to be privileged, the defendant is free to publish, with impunity, remarks which may be defamatory and untrue about the plaintiff. However, the privilege is qualified in the sense that it can be defeated. This can occur particularly in two situations: where the dominant motive behind the words was malice, such as where the speaker was reckless as to the truth of the words spoken; or where the scope of the occasion of privilege was exceeded. See Bent at para. 121.

[79] In Canadian Standards Association v. P.S. Knight Co. Ltd., 2019 ONSC 1730 at para. 58, Justice Brown gave the following examples of occasions where the privilege is defeated or exceeded:

The privilege will be defeated if the information is communicated to an inappropriate or excessive number of peoples [sic] or if the information that is communicated was not reasonably appropriate to the legitimate purposes of the occasion (i.e., excessive distribution or inappropriate content). Publication by Internet rarely is treated as necessary or reasonable. In addition, the privilege does not extend to reporting uncorroborated allegations of criminal wrongdoing to the general public as opposed to law enforcement or investigative authorities.

[80] The threshold for privilege remains high: see Torstar at para. 37. It is unclear whether a media outlet can avail itself of this defence: Torstar at paras. 34-37.

[81] I conclude that the defence of qualified privilege does not apply in this case. Among other things:

(a) No occasion of qualified privilege existed or, if there was one, it was exceeded. The Defendants did not communicate their statements to the members of CTCC only, but, rather, they published them on the Internet and made them available to the world at large. The distribution was excessive and not limited to recipients who had an interest or duty to receive the communications.

(b) As stated above, the privilege does not extend to reporting uncorroborated allegations of criminal wrongdoing to the general public as opposed to law enforcement or investigative authorities.

(c) I find that the Defendants were reckless as to the truth of the words they published. As the Supreme Court of Canada noted in Bent at para. 136, “[t]he more serious the allegation in issue, the more weight a court will give to a failure by the defendant to verify it prior to publication as evidence of malice, in the sense of indifference to the truth”. As discussed above, the approach adopted by Mr. Mooka was woefully lacking in diligence, despite the fact that the Articles contained very serious allegations of misconduct. See also Bent at para. 132. Further, I note that Mr. Mooka concedes in his affidavit that he showed imprudence in writing the Articles, that he had a lapse of judgment, and that he included statements in the Articles that could not be proven.

[82] As a result, the defence of qualified privilege does not raise any genuine issue requiring a trial.

d. Fair comment

[83] A defendant claiming fair comment must satisfy the following test:

(a) the comment must be on a matter of public interest;

(b) the comment must be based on fact;

(c) the comment, though it can include inferences of fact, must be recognisable as comment;

(d) the comment must satisfy the following objective test: could any person honestly express that opinion on the proved facts?; and

(e) even though the comment satisfies the objective test, the defence can be defeated if the plaintiff proves that the defendant was actuated by express malice.

See Torstar at para. 31.

[84] I find it unnecessary to conduct a detailed analysis of this defence, including whether the statements in issue are comments, as this defence fails for the same reasons that the defence of justification fails: the Defendants have not adduced any evidence that the statements/comments are based on true or proved facts.

[85] Consequently, the defence of fair comment does not raise any genuine issue requiring a trial.

[86] Given that there is no genuine issue requiring a trial with respect to any of the defences raised by the Defendants, the Plaintiff is entitled to judgment for defamation with respect to the Articles.

4. General Damages

[87] In libel cases, general damages are presumed from the very publication of the false statement. The injured plaintiff bears no obligation to prove actual loss or injury. Special damages for pecuniary loss are rarely claimed in libel actions as they are often exceedingly difficult to prove. Thus, “the whole basis for recovery for loss of reputation usually lies in the general damages award.” See Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC), [1995] 2 S.C.R. 1130 at para. 169 (“Hill”) and Rutman v. Rabinowitz, 2018 ONCA 80 at paras. 62-63 (“Rutman”).

[88] The purpose of general damages in defamation actions is to console the victim as well as to vindicate and repair the victim’s reputation: see Zoutman v. Graham, 2019 ONSC 2834 at para. 114; aff’d 2020 ONCA 767 (“Zoutman”).

[89] Libel cases are fact-sensitive. The amount of general damages to be awarded is entirely discretionary and each case turns on its own particular facts. The factors to consider in determining the quantum of damages for defamation include the following: (a) the plaintiff’s position and standing, (b) the nature and seriousness of the defamatory statements, (c) the mode and extent of publication, (d) the absence or refusal of any retraction or apology, (e) the whole conduct and motive of the defendant from publication through judgment, and (f) any evidence of aggravating or mitigating circumstances. See Barrick Gold Corp. v. Lopehandia, 2004 CanLII 12938 at para. 29 (Ont. C.A.) (“Barrick Gold”), Lotin v. Gregor, 2019 ONSC 1510 at paras. 95, 98, and Rutman at paras. 82-84.

[90] I discuss below each of the factors in turn:

(a) The Plaintiff’s position and standing. The Plaintiff is heavily involved in the Tamil community, particularly in the GTA, and he is an insurance professional. While I agree with the Plaintiff that the statements in the Articles are particularly damaging to a professional in the Plaintiff’s position, the allegations do not relate to the Plaintiff’s actions or conduct as an insurance professional. Further, I must take into account the fact that the Plaintiff’s integrity was put in issue in late 2017 in the Sun Life Letter which was sent to approximately 1,500 clients of the Plaintiff, who are almost all members of the Tamil community. I also note that there is a faction of people in the Tamil community in the GTA who are critical of the work done by the Plaintiff in the Tamil community, in particular as President and board member of CTCC.

(b) The nature and seriousness of the defamatory statements. As stated a number of times already, the allegations of misconduct against the Plaintiff are very serious.

(c) The mode and extent of publication. The Court of Appeal has held that the pernicious effect of defamation on the Internet distinguishes it, for the purposes of damages, from defamation in another medium: see Barrick Gold at paras. 28-34 and Rutman at para. 68. The evidence in this case, which is unchallenged, is that people who saw the Articles include family members and close friends of the Plaintiff, people directly involved with CTCC, and people in Sri Lanka, Australia, England and The Netherlands. There is no reliable evidence before me as to the number of people who visited the Website and viewed the Articles. However, I note that in his December 4, 2019 letter sent in response to the Notice of Libel, Mr. Mooka referred to PMG’s “local and international audience/readers”.

(d) The absence or refusal of any retraction or apology. After receiving the Notice of Libel, the Defendants refused to issue an apology and refused to remove the Articles from the Website unless they received some “compensation”. While the Articles are no longer accessible on the Website, this is because of technical issues, not because the Defendants decided to remove them. Mr. Mooka’s affidavit contains an apology of sort, but the apology is limited to the failure to give the Plaintiff an adequate opportunity to respond before the Articles were published.

(e) The whole conduct and motive of the defendant from publication through judgment. I have commented above on the Defendants’ lack of due diligence and their recklessness as to the truth of the words they published. Based on the evidence, the motives of the Defendants are unclear, but Mr. Mooka appears to have joined a faction that is critical of the work done by the Plaintiff in the Tamil community, in particular as President and board member of CTCC.

(f) Any evidence of aggravating or mitigating circumstances. All the relevant circumstances have been referred to above.

[91] Having regard to all of the factors set out above and the case law relied upon by the parties, I assess general damages at $75,000.

5. Aggravated damages

[92] Aggravated damages are awarded where a defendant is guilty of insulting, highhanded, spiteful, malicious or oppressive conduct which has increased the mental distress and humiliation suffered by the plaintiff. These damages take into account the additional harm caused to the plaintiff's feelings by the defendant’s outrageous and malicious conduct. Like general or special damages, they are compensatory in nature. Their assessment requires consideration of the entire conduct of the defendant prior to the publication of the libel and continuing through to the conclusion of the trial. They represent the expression of natural indignation of right‑thinking people arising from the malicious conduct of the defendant. See Zoutman at para. 119 and Hill at paras. 188-189.

[93] If aggravated damages are to be awarded, there must be a finding that the defendant was motivated by actual malice, which increased the injury to the plaintiff, either by spreading further afield the damage to the reputation of the plaintiff, or by increasing the mental distress and humiliation of the plaintiff. The malice may be established by intrinsic evidence derived from the libellous statement itself and the circumstances of its publication, or by extrinsic evidence pertaining to the surrounding circumstances which demonstrate that the defendant was motivated by an unjustifiable intention to injure the plaintiff. See Hill at para. 190.

[94] While I have found that the Defendants’ conduct was reckless, this factor was taken into consideration in the assessment of the Plaintiff’s general damages. Given that aggravated damages are meant to be compensatory and that all the relevant factors have already been taken into account when assessing general damages (including the seriousness of the allegations, the Plaintiff’s position and standing, the absence of retraction or apology, and the conduct and motive of the Defendants), it is my view that aggravated damages are not warranted in this case as the general damages adequately compensate the Plaintiff for the harm he suffered.

6. Punitive damages

[95] To obtain an award of punitive damages, a plaintiff must meet two basic requirements. First, the plaintiff must show that the defendant’s conduct was reprehensible; other descriptions include “malicious, oppressive and high-handed”, and “a marked departure from ordinary standards of decent behaviour”. Second, the plaintiff must show that a punitive damages award, when added to any compensatory award, is rationally required to punish the defendant and to meet the objectives of retribution, deterrence and denunciation. Punitive damages are the exception rather than the rule. See Boucher v. Wal-Mart Canada Corp., 2014 ONCA 419 at para. 79 and Whiten v. Pilot Insurance Co., 2002 SCC 18 at paras. 36, 94.

[96] I find that the Defendants’ conduct was a marked departure from ordinary standards of decent behaviour and sufficiently reprehensible to merit an award of punitive damages. Among other things: (a) the Defendants were reckless as to the truth of the words they published; (b) they made very serious allegations of wrongdoing against the Plaintiff and used very strong language without trying to verify their allegations in any meaningful way; (c) they made these allegations available to the world at large by publishing them on the Internet; (d) they subsequently refused to remove the Articles from the Website unless they received some “compensation”; and (e) they did not adduce any evidence that supports the truth of their allegations on this motion. While Mr. Mooka showed some contrition in his affidavit and offered a limited apology, this was too little, too late.

[97] In my view, a modest award of punitive damages in addition to the award of general damages is rationally required to punish the Defendants and to meet the objectives of retribution, deterrence and denunciation. Given the context in which the defamatory statements were made, including the factions within CTCC and the Tamil community, it is important to deter the Defendants and others from similar misconduct in the future and to mark the community’s collective condemnation of what happened: see Whiten at para. 94.

[98] In light of the extent of the misconduct, the degree of culpability of the Defendants and the award of general damages, I have come to the conclusion that an appropriate quantum of punitive damages is $25,000.

7. Permanent injunction

[99] The Plaintiff seeks a permanent injunction restraining the Defendants from making defamatory statements about the Plaintiff.

[100] In appropriate circumstances, a court may grant an injunction to prevent a defendant from continuing to disseminate defamatory material that affects a plaintiff's reputation. However, injunctive relief is an exceptional remedy that will not be imposed by the courts lightly. Any form of prior restraint on freedom of speech is extremely serious and can only be imposed in the clearest and rarest of cases. See Astley v. Verdun, 2011 ONSC 3651 at paras. 20, 33 (“Astley”).

[101] Permanent injunctions can be ordered in defamation actions where either (1) there is a likelihood that the defendant will continue to publish defamatory statements, despite a finding of liability; or (2) there is a real possibility that the plaintiff will not receive any compensation, given that enforcement against the defendant of any damage award may not be possible. See Zoutman at para. 128 and Astley at para. 21.

[102] There is no evidence before me that the Plaintiff will be unable to collect a damages award from the Defendants. I also cannot conclude, based on the evidence before me, that there is a likelihood that the Defendants will continue to publish defamatory statements, despite a finding of liability. The Articles were published in July and November 2019 and the record before me does not contain evidence about any additional defamatory statements by the Defendants (the WhatsApp Messages are discussed above). The Website has been down since the fall of 2020. While it is true that this did not happen on purpose, there is no indication that the Defendants have attempted to bring back the Articles online. Further, Mr. Mooka’s affidavit suggests that the litigation has been a learning process for him, and he has admitted making mistakes and having a lapse of judgment. Therefore, I am not satisfied that it is likely that the Defendants will continue to publish defamatory statements about the Plaintiff despite this Court’s finding that they are liable to the Plaintiff for defamation.

[103] As a result, I decline to grant a permanent injunction. However, the Defendants should not in any way interpret this decision as a licence to publish further defamatory statements about the Plaintiff.

III. CONCLUSION

[104] The Plaintiff’s motion for leave to amend his Statement of Claim is granted, and his motion for summary judgment is granted in part, in accordance with these reasons. The Defendants are ordered to pay to the Plaintiff $75,000 as general damages for defamation, and $25,000 as punitive damages.

[105] If costs cannot be agreed upon, the Plaintiff shall deliver submissions of not more than three pages (double-spaced), excluding the costs outline, within 14 days of the date of this decision. The Defendants shall deliver their responding submissions (with the same page limit) within 14 days of their receipt of the Plaintiff’s submissions. The submissions of all parties shall also be sent to my assistant by e-mail and uploaded onto CaseLines.

Vermette J.

Date: August 18, 2022

[^1]: While the position of the Defendants on this point was not clear in their Factum, the Defendants’ lawyer agreed at the hearing that this case was appropriate for summary judgment.