Court File and Parties
Court File No.: CV-22-00679630-0000 Date: 2022-10-27 Ontario Superior Court of Justice
Re: Ramin Mirzadegan and Mirzadegan Immigration and Citizenship Services Inc., Plaintiffs And: Ehsan Mahdizadeh, Yalda Amirian, and Emad Mahdizadeh, Defendants
Before: Robert Centa J.
Counsel: Karey Anne Dhirani, for the plaintiffs No one appearing for the defendants
Heard: October 26, 2022 (in writing)
Endorsement
[1]
Background
The plaintiff Ramin Mirzadegan is an immigration consultant. Mr. Mirzadegan operates the Mirzadegan Immigration and Citizenship Services Inc. On August 6, 2021, the defendants Ehsan Mahdizadeh and Yalda Amirian retained Mr. Mirzadegan in connection with an application to obtain work permits and permanent residency in Canada. The third defendant, Emad Mahdizadeh, is the brother of Ehsan Mahdizadeh. All of the defendants currently live in the Islamic Republic of Iran.
2In September 2021, Mr. Mirzadegan terminated the retainer, among other reasons, because of concerns about the accuracy of certain documents that Mr. Mahdizadeh had provided to him. Subsequently, Mr. Mahdizadeh made a series of threats against Mr. Mirzadegan, which he reported to the police.
3Starting in November 2021, a series of negative reviews and complaints about Mr. Mirzadegan appeared on-line. Some of these reviews included the names, initials, and the known email address of the defendants. Some of the reviews contained particulars of the retainer agreement between Mr. Mirzadegan and Ehsan Mahdizadeh and Ms. Amirian. Many of these posts ended up cross-posted to multiple sites on the internet. All of the posts named Mr. Mirzadegan or his company. All of the posts were inflammatory and made serious allegations against the plaintiffs. The posts appeared weekly or sometimes daily. Ultimately, Ehsan Mahdizadeh and Ms. Amirian posted over 60 such reviews plus many more comments and responses associated with the reviews.
4The volume of the posts meant that they were began to infiltrate the internet search results that would be obtained by potential customers seeking to retain Mr. Mirzadegan or his company. Mr. Mirzadegan believes that the posts have harmed his business and reputation. He states that he has been unable to find new clients to retain him and that he continually has to defend himself against these false statements. He finds the situation personally humiliating and very distressing.
5Mr. Mirzadegan’s attempts to resolve the matter consensually through counsel were unsuccessful. Indeed, it appears that the pace of the posts and their vitriol increased after these attempts. Mr. Mirzadegan asked the websites hosting the posts to remove them. He met with limited success. The websites are located all over the world and several declined to remove the content absent a court order.
[6]
Procedural History
On April 11, 2022, Mr. Mirzadegan commenced this action. He delivered a copy of the statement of claim to the defendants by email. Subsequently, on-line posts began to appear that referenced the statement of claim and the Ontario court process. I am satisfied that the defendants have actual knowledge of the claim.
7On June 14, 2022, Associate Justice Brott validated service of the statement of claim effective May 8, 2022. On July 21, 2022, the defendants were noted in default and, thereby, deemed to accept the truth of the facts pleaded in the statement of claim.
8In the statement of claim, no specific facts are pleaded about the role of Emad Mahdizadeh. In the affidavit filed by Mr. Mirzadegan, he does not identify any posts that were allegedly authored by Emad Mahdizadeh. It appears that Emad Mahdizadeh is named in some of the posts, but the evidence does not satisfy me that Emad Mahdizadeh is responsible for the defamatory posts. The action against Emad Mahdizadeh is dismissed without costs.
9I am satisfied, however, that judgment should issue against Ehsan Mahdizadeh and Ms. Amirian.
[10]
Liability
I find that the posts would tend to lower the plaintiffs’ reputation in the eyes of a reasonable person, the impugned words refer to the plaintiffs, and the words were published: Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640, at para. 28. The defendants have not participated in this proceeding and have not advanced any defences to the defamatory posts. I find that the plaintiffs have proved that the posts are defamatory.
[11]
Damages
I am also satisfied that the plaintiffs are entitled to damages for the defamatory statements. The titles and content of the posts state and imply that the plaintiffs are guilty of criminal misconduct. The subjects of such unproven posts suffer great harm: Post v. Hillier, 2022 ONSC 3793, at para. 18; Emeny v. Tomaszewski, 2019 ONSC 3298, at para. 30 to 36; Seymour v Nole, 2022 BCSC 867, at para. 112; Palen v Dagenais, 2013 SKQB 39, 413 Sask R 10, at para. 8; Pinsent v Sandstrom, 2014 ABQB 269, at para. 19.
12General damages for defamation compensate plaintiffs for the distress suffered, repair the harm to their personal and professional reputation, and vindicate their reputation. They are awarded at large and a plaintiff need not prove a specific loss: Post, at para. 24. In determining the appropriate amount of general damages, the court should consider the conduct of the plaintiff, the plaintiff’s position and standing, the nature of the libel, the mode and extent of publication, the absence or refusal of any retraction or apology, and the whole conduct of the defendant from the time when the libel was published to the moment of judgment: Hill v. Church of Scientology of Toronto, 1995 59 (SCC), [1995] 2 SCR 1130, at para. 182. The fact that social media was used to spread the defamatory statements can justify a higher damages award: Barrick Gold v. Lopehandia, 2004 12938 (ON CA), 71 O.R. (3d) 416 (C.A.), at paras. 31 and 34.
13All of the factors in this case support a significant damages award. Mr. Mirzadegan’s professional reputation is extremely important to him. Ehsan Mahdizadeh and Ms. Amirian have engaged in a campaign to malign the plaintiffs unfairly. They have sought to maximize the impact of their defamatory statements by cross-posting their statements to multiple platforms and by providing additional responses and comments about their posts. Ehsan Mahdizadeh and Ms. Amirian did not retract their comments or apologize for them. This type of prolonged internet defamation campaign can not be tolerated.
14In my view, a $200,000 award of general damages is appropriate in the circumstances and falls within the range of awards in similar cases: Emeny at para 42.
15I also find that an award of aggravated damages is appropriate in this case. In a similar case, Corbett J. awarded aggravated damages in a defamation case: Sommer v. Goldi, 2022 ONSC 3830. At paragraphs 38 to 40, Corbett J. wrote:
This case cries out for an award of aggravated damages. When put on notice of the plaintiff’s claims, the defendants did not remove the defamatory posts from the internet. They left them up. And they continued their campaign. Then they conducted themselves in the litigation in a manner designed to prolong delay in the litigation. They evaded service and continued to do so after they had been compelled before the court by a bench warrant. Mr Sommer’s legal proceedings did not give the defendants pause, and their conduct as litigants has shown them to be essentially ungovernable. The net result, for the plaintiff, has been a feeling of frustration and impotence in the face of an obvious and ongoing civil wrong committed against him.
The defamatory words, themselves, are so intemperate to make it clear that this was a campaign intended at Mr Sommer’s professional destruction, and not to raise legitimate concerns about controversies that exist respecting the genuineness of Morisseau artworks.
In my view the conduct of the defendants is so egregious that an award of aggravated damages is appropriate. I fix the amount of that award at $100,000.
16I award the plaintiffs aggravated damages in the amount sought, namely, $50,000.
[17]
Injunction
I also award the plaintiffs a permanent injunction restraining Ehsan Mahdizadeh and Ms. Amirian from disseminating, posting on the internet, distributing, or publishing in any manner any defamatory statements concerning the plaintiffs or the employees of Mirzadegan Immigration and Citizenship Services Inc. I do not think it is appropriate to issue an injunction preventing all comments about the plaintiffs. It is necessary, however, to prevent Ehsan Mahdizadeh and Ms. Amirian from continuing to defame the plaintiffs as I have no doubt that Ehsan Mahdizadeh and Ms. Amirian will otherwise continue to publish defamatory statements: Emeny at para. 60; Paramount v. Kevin J. Johnstone, 2019 ONSC 2910, at paras. 94-95.
18I also order Ehsan Mahdizadeh and Ms. Amirian to have the posts removed.
19I am not prepared to make an order vesting the postings and accounts of Ehsan Mahdizadeh and Ms. Amirian with the plaintiffs. The evidentiary record regarding the ownership of the accounts does not satisfy me that such an order should be made. There is no evidence, for example, regarding the possible consequences of vesting ownership of an account on the legitimate activities of Ehsan Mahdizadeh and Ms. Amirian that are unrelated to the defamatory posting. The plaintiffs may, however, request that any entity hosting these defamatory posts remove them to give effect to this decision.
[20]
Costs
The plaintiffs are entitled to their costs of this proceeding. Fixing costs is a discretionary decision under section 131 of the Courts of Justice Act, R.S.O. 1990, c C.43. In exercising my discretion, I may consider the result in the proceeding, any offer to settle or to contribute made in writing, and the factors listed in rule 57.01 of the Rules of Civil Procedure R.R.O. 1990, Reg 194. These factors include the principle of indemnity (rule 57.01(1)(0.a)), the reasonable expectations of the unsuccessful party (rule 57.01(1)(0.b)), the amount claimed and recovered (rule 57.01(1)(a)), and the complexity of the proceeding (rule 57.01(1)(c)).
21In exercising my discretion to fix costs, I must consider what is fair and reasonable for the unsuccessful party to pay in this proceeding and balance the compensation of the successful party with the goal of fostering access to justice: Boucher v Public Accountants Council (Ontario) (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.) at paras. 26 and 37.
22The plaintiffs seek costs on a partial indemnity scale of $25,009.40. I have reviewed the bill of costs and the amount of time and rates charged are reasonable in the circumstances of this case. I fix the costs of the motion at $25,009.40, inclusive of disbursements and Harmonized Sales Tax, and order Ehsan Mahdizadeh and Ms. Amirian to pay that amount to the plaintiffs within 30 days of the date of this order.
23The plaintiffs may submit a draft order that is consistent with these reasons to Theresa.Finelli@ontario.ca for my review.
Robert Centa J.
Date: October 27, 2022