COURT FILE NO.: CV-21-2050-00

DATE: 2022 11 29

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

RASHPINDER KAUR

Edward Sullivan, for the Plaintiff

Plaintiff

• and -

HARVINDER VIRK a.k.a. TAAJVEER VIRK

Defendant

HEARD: October 31, 2022

REASONS FOR JUDGMENT

Emery J.

[1] Judgment granted on a motion for default judgment brought by the plaintiff, Rashpinder Kaur, under Rule 19.05.

[2] In the action, Ms. Kaur is seeking damages totalling $150,000 from the defendant Harvinder Virk, also known as Taajveer Virk, for defamation or alternatively for placing her publicly in a false light.

[3] Ms. Virk was served with the statement of claim on or about June 6, 2021 but did not file a statement of defence. She was noted in default on or about July 27, 2021. Counsel for Ms. Kaur appeared before Mandhane J. on October 22, 2021 to obtain default judgment. Mandhane J. ruled that viva voce evidence was necessary to prove the claim and ordered that the motion be scheduled as an uncontested trial under Rule 19.05(3).

[4] As Ms. Virk had been noted in default, she was not entitled to receive notice of the hearing for the motion before Mandhane J. As a further consequence, she had no notice of the trial.

[5] The evidence on the uncontested trial was given in an affidavit sworn or affirmed by Ms. Kaur dated July 13, 2022, and the evidence given by Ms. Kaur at the hearing. For the reasons that follow, I grant judgment to Ms. Kaur for general and special damages.

Brief background

[6] Ms. Kaur is married to Mandeep Sadioura. According to the allegations in the statement of claim, Ms. Virk and Mr. Sadioura were at one time business acquaintances. The allegations giving rise to the causes of action start with this fact.

[7] The statement of claim contains the following allegations of fact:

a. Mr. Sadioura is a licensed realtor who also works in the marketing industry. He has notable connections in the Indian community. At all material times, Ms. Virk knew of his skills and networks.

b. Ms. Virk met Mr. Sadioura at a concert in 2018. They struck up a friendship, and thereafter exchanged periodic messages.

c. On or about May 9, 2021, Ms. Virk sent Mr. Sadioura a message on an unsolicited basis to ask for his assistance to help her create and market social media content. Ms. Virk had a very active social media profile with an extensive following at the time.

d. Mr. Sadioura agreed to assist Ms. Virk. He met with her at her home to assist her with creating a music video on the condition that it would not be posted on social media. The use of the music video was specifically limited Ms. Virk’s use of it as an acting/audition reel.

e. Later that day, Mr. Sadioura saw that Ms. Virk had posted the video in the form of four “TikTok” videos. This was not only contrary to their agreement, but the videos also depicted Mr. Sadioura as Ms. Virk’s husband.

f. This depiction on social media caused great upset to Mr. Sadioura and Ms. Kaur.

g. Mr. Sadioura contacted Ms. Virk immediately to request that she take down the videos. Ms. Virk refused, and blocked Mr. Sadioura from contacting her. As a result, Ms. Kaur texted Ms. Virk to advise her that she was Mr. Sadioura’s wife, and to ask her to take down the videos. Ms. Virk refused to comply, and subsequently blocked Ms. Kaur’s calls as well.

h. Before this occurrence, Ms. Kaur had no knowledge of Ms. Virk, and never had any contact with her.

i. On May 14, 2021, Ms. Virk filed a complaint with the Peel Regional Police accusing Ms. Kaur of breaking into her vehicle.

j. This complaint was entirely unfounded. Peel Regional Police investigated the allegations and satisfied themselves that Ms. Kaur had not committed any offence as she was in India at the time of the alleged incident.

k. To the best of Ms. Kaur’s knowledge, Ms. Virk filed a total of three police reports against her.

l. After the police dismissed her complaints, Ms. Virk posted videos on her social media platforms, including TikTok, Facebook and Instagram. In a video posted to WhatsApp on May 26, 2021, Ms. Virk states that Ms. Kaur has had many “live-in relationships” to suggest she is promiscuous, and further alleged that Ms. Kaur had damaged her car.

m. Ms. Virk included photographic images of Ms. Kaur taken from Ms. Kaur’s own Facebook profile, without her consent. In the video, Ms. Virk also posted Ms. Kaur’s telephone number and encouraged her viewers to contact Ms. Kaur to “teach her a lesson.”

n. Ms. Kaur has consequently been contacted by hundreds of people who have harassed her and who have made disparaging remarks towards her and her family.

o. During the last week of May 2021, Ms. Virk posted other videos showing her photograph that contained an audio track of defamatory comments about Ms. Kaur’s character. Ms. Kaur alleges that these videos were all intended to “incite hate” and to damage her reputation.

p. The majority of words in these video’s was in the Punjabi language. The videos were rapidly viewed by the closely knit Indian community in Brampton, as well as across the world.

q. Despite Ms. Kaur’s requests that Ms. Virk take down these postings, they remained on Ms. Virk’s platforms.

[8] The videos posted to Ms. Virk’s accounts on social media were ultimately taken down. Ms. Kaur does not seek an order from the court for a mandatory order or other injunctive relief.

[9] The statement of claim continues with the following allegations:

a. The statements and content of the videos posted by Ms. Virk on social media sites were defamatory as they were false and made with the intention to harm Ms. Kaur, her character and reputation. They assert that she is promiscuous and a philanderer, and that she engages in criminal conduct, all of which is untrue.

b. The defamatory statements and content of the videos refer to Ms. Kaur by name, with her photograph and telephone number.

c. The defamatory words and content would clearly lower Ms. Kaur’s reputation in the eyes of a reasonable person, and has lowered her reputation in the Indian community.

d. Ms. Kaur is a mortgage agent at Mortgage Hub, a mortgage broker agency located in Mississauga. The defamatory statements and content on the videos posted by Ms. Virk would lower her reputation in the eyes of current and prospective real estate clients.

e. Ms. Kaur was also studying law at the time the videos were posted by Ms. Virk. She claims that such comments and content are likely to damage her reputation in the legal community in the future.

f. Ms. Kaur states that she has suffered significant emotional distress and trauma as a result of Ms. Virk’s campaign against her. She claims general damages, as well as special damages and punitive damages from Ms. Virk.

[10] In her affidavit, Ms. Kaur sets out the evidence to prove the facts alleged in the statement of claim. In particular, she attaches the transcripts of three videos posted by Ms. Virk in May 2021 on Ms. Virk’s WhatsApp account, and on her TikTok page. These transcripts have been translated into English. Each of those transcripts are accompanied by an affidavit sworn by Supreeti Singh, a translator with All Languages Ltd. attesting to their accuracy.

[11] Ms. Kaur gave evidence at trial to prove the materials facts alleged in the statement of claim and the evidentiary basis for the damages she is claiming. For special damages, Ms. Kaur has made a claim for loss of income as a mortgage agent for the four months after the posting of the videos on Ms. Virk’s accounts. She testified about the income she earned in 2021 before and after the videos as follows:

Month Income

January nil

February $8,209

March $22,480

April $9,830

May nil

June $27,329

July - October nil

Analysis

[12] This motion requires a preliminary overview of the law on motions for default judgment, either as a motion or heard as an uncontested trial. Owing to the nature of the claim, the elements of the tort of defamation and of publicly showing another person in a false light is set out, both in terms of what is required to find liability, and to award damages.

Applicable principles

On granting default judgment

[13] Rule 19.02(1) (a) provides that a defendant who has been noted in default is deemed to admit the truth of material facts alleged in the statement of claim.

[14] Rule 19.06 provides that a plaintiff such as Ms. Kaur is not entitled to judgment on a motion for default judgment or at trial merely because the facts alleged in the statement of claim are deemed to be admitted. There must be facts that entitle her to judgment. Justice D.M. Brown, when a judge of this court, wrote on the process a judge must follow on a motion for default judgment in Elekta Ltd. v. Rodkin, 2012 ONSC 2062 at para. 14:

[14] Accordingly, on a motion for default judgment the inquiry undertaken by the court is the following:

(i) What deemed admissions of fact flow from the facts pleaded in the Statement of Claim?

(ii) Do those deemed admissions of fact entitle the plaintiffs, as a matter of law, to judgment on the claim?

(iii) If they do not, has the plaintiff adduced admissible evidence which, when combined with the deemed admissions, entitles it to judgment on the pleaded claim?

[15] Justice Strathy, as he then was, explained in Salimijazi v. Pakjou, 2009 CarswellOnt 2013 that the court has a duty to the plaintiff to dispense cost efficient justice, but also to the absent defendant and to the public to ensure that justice is done. This duty is part of the duty of the court to ensure the administration of justice. The court has the duty on a motion for default judgment to ensure that “manifestly unsustainable claims are not mechanically processed.”

[16] The most recent pronouncement of what must be proven to obtain default judgment is found in the recent decision of the Court of appeal in Paul’s Storage Inc. v. Immediate Logistics Limited, 2022 ONCA 573. In Paul’s Storage, a five-member panel was constituted to review whether the proposition in Umlauf v. Umlauf (2001), 2001 Canlii 24068 that not only the facts pleaded in a statement of claim are deemed to be admitted on default, but also conclusions of law remains the law in Ontario. The Court of Appeal ruled they are not, explaining that:

[77] Accordingly, I return to the question of whether the Umlauf Proposition is good law. In my view, it is not, and the approach articulated in Segraves, Salimijazi, and Nikore should be followed. Conclusions of law, and of mixed law and fact, are not to be deemed admitted under r. 19.02(1) where a defendant has been noted in default. If the facts pleaded do not support the conclusion of law pleaded, the motion judge may decline to grant judgment despite the failure of the defendant to defend the action: Salimijazi, at para. 19. The motion judge is entitled to scrutinize both the deemed admissions in the pleading and any evidence tendered by the plaintiff to see whether the plaintiff is entitled to judgment: Salimijazi, at para. 28.

[78] This approach is compatible with a plain and harmonious reading of rr. 19.02(1)(a) and 19.06, whereas the Umlauf Proposition is not.

[79] For ease of reference, I reproduce those provisions here:

19.02 (1) A defendant who has been noted in default,

(a) is deemed to admit the truth of all allegations of fact made in the statement of claim[.]

19.06 A plaintiff is not entitled to judgment on a motion for judgment or at trial merely because the facts alleged in the statement of claim are deemed to be admitted, unless the facts entitle the plaintiff to judgment. [Emphasis added.]

[80] On a plain reading of r. 19.02(1)(a), it applies to allegations of fact made in the statement of claim, not to conclusions of law or mixed law and fact. Rule 19.02(1)(a) does not deem everything in a statement of claim admitted, only allegations of fact. Rule 19.06 provides that a plaintiff is not entitled to judgment merely because the “facts alleged in the statement of claim” are deemed to be admitted. Again, there is no reference to conclusions of law or mixed law and fact. And, significantly, under r. 19.06, judgment is not to be granted unless the facts deemed to be admitted “entitle the plaintiff to judgment”. Giving effect to the two rules harmoniously requires distinguishing between allegations of fact and conclusions of law. The court must determine whether the deemed factual admissions in the pleading and any evidence tendered by the plaintiff entitle the plaintiff to judgment.

[17] Ms. Virk has been noted in default. I consider the effect of rule 19.02(1) to apply as much at an uncontested trial as it would on a motion for default judgment. Where a defendant is noted in default, the consequences set out in Rule 19.02(1) will follow for the deemed admission of facts. However, where an allegation contains a legal assertion intertwined with a material fact or a conclusion of law is stated or is baked into a set of facts that must be read together, those facts are not deemed to be true on default but must be proven. As the Court noted in Paul’s Storage, this approach is consistent with Rule 19.06 that a plaintiff is not entitled to judgment unless the facts entitle that plaintiff to judgment.

[18] Ms. Kaur relies upon those facts pleaded in the statement of claim that are deemed to be admitted as true in combination with the evidence she gave at trial to establish liability against Ms. Virk.

[19] In the internet age, actions based on emerging torts such as intrusion on seclusion and the public portrayal of another person in a false light are becoming as prevalent as traditional claims such as defamation. From time to time, one tort is pleaded in the alternative to another, with fresh applications of applicable concepts asserted as causes of action.

[20] In this case, Ms. Kaur is suing Ms. Virk for defamation, specifically libel, based on videos the latter posted on three occasions in May 2021. At trial, Ms. Kaur advised the court she is not pursuing her claim for deceit or malicious prosecution based on the report she made to the police that Ms. Kaur had damaged her car to the police. Ms. Kaur does not rely on the allegations made by Ms. Virk to the police, or that appeared in the police reports written about the complaint as the basis for her claim.

Elements for libel

[21] The essential elements for a claimant to prove defamation, and for libel in particular, are set out by the Supreme Court of Canada in Grant v. Torstar, 2009 SCC 61:

a. that the impugned words were defamatory, in the sense that they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person;

b. that the words in fact referred to the plaintiff; and

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

[22] The Supreme Court in Grant went on to state that if these elements are established on a balance of probabilities, falsity and damage are presumed.

[23] The concept of defamation spread over the internet was dealt with by W. Matheson J. in Awan v. Levant, 2014 ONSC 6890. At paras. 80 and 81, Justice Matheson describes what kind of statements are defamatory, and what effect that statement must have on what audience or community to make the alleged defamer liable:

[80] It is well accepted that a defamatory statement is one that has a tendency to lower the reputation of the person to whom it refers in the estimation of right-thinking members of society generally, and in particular, to cause him or her to be regarded with feelings of hatred, contempt, ridicule, fear, dislike or disesteem: Botiuk v. Toronto Free Press Publications Ltd., 1995 CanLII 60 (SCC), [1995] 3 S.C.R. 3, at para. 62; Color Your World v. Canadian Broadcasting Corp. (1988), 1998 CanLII 1983 (ON CA), 38 O.R. (3d) 97 (C.A.), at para. 14, as cited in Manson v. John Doe No. 1, 2013 ONSC 628, at para. 21.

[81] The statements are judged by the standard of an ordinary right-thinking member of society. Hence, the test is an objective one: Color Your World, at para. 14.

Elements of portraying another person in a false light

[24] The elements for the new tort of portraying another person publicly in a “false light” were set out by Kristjanson J. at para. 170 of Yenovkian v. Gulian, 2019 ONSC 7279:

One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy, if:

(a) the false light in which the other was placed would be highly offensive to a reasonable person, and

(b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed. [emphasis added]

[25] In Yenovkian, Kristjanson J. explained that while the publicity giving rising to the tort will often be defamatory, defamation is not required to establish liability. She held that it is sufficient for a person claiming to show that “a reasonable person would find it highly offensive to be publicly misrepresented as they have been.” Much like defamation, the tort of publicizing the persona of another person in a false light has an element of deception and falsity without the strict test of whether that person’s reputation would be lowered in the eyes of the community.

Liability

[26] Ms. Kaur is currently a 34-year-old married woman. She has given evidence that she did not know of Ms. Virk before she contacted her to ask that Ms. Virk take down the music video that Mr. Sadioura had helped her to produce. If Ms. Kaur knew of any further involvement of Ms. Virk in her life, she did not include those facts in the evidence contained in her affidavit or given at the uncontested trial.

[27] There are three videos at issue that contain words that Ms. Kaur claims are defamatory and therefore actionable.

Video posted on May 26, 2021

[28] Ms. Kaur discovered the first video posted by Ms. Virk on May 27, 2021. She began to receive messages from individuals who had seen the video and were reacting to it. This video was posted on May 21, 2022 to Ms. Virk’s WhatsApp account, and had been available for viewing for approximately a week before Ms. Kaur was aware of it. This video was identified as WA0011.

[29] The video identified as WA0011 is 36 seconds long and features a female voice speaking Punjabi starting at the 10 second mark. This video displays a series of photographs of Ms. Kaur alone or with a friend or a family member, as well as a video clip of two police vehicles at night with lights activated adjacent to a white SUV. The voiceover on this video states as follows:

“Yes, this woman has become very proud about herself after living in a live-in relationship with 5-6 men so that is why she has gotten an innocent person’s vehicle damaged in Brampton. And you can get in touch if she has ever behaved in this kind of rude fashion with you. And it is very important to teach her a lesson. You can see, this is the vehicle that she has gotten damaged.” [emphasis added]

[30] The transcript of video WA0011 was marked as Exhibit “C” at trial. Ms. Kaur testified that 100 people could view it especially when Ms. Virk posted it to her own Facebook page and referred to Ms. Kaur by name. Ms. Kaur also alleges that it was posted on TikTok as a public video. In fact, the TikTok brand name and logo is evident on the video itself.

[31] I heard no evidence of the subsequent posting to TikTok, or how the public would have access to the accounts on WhatsApp or TikTok in the name of Ms. Virk. It is open for the court to take judicial notice of a fact that is so generally known and accepted that it cannot reasonably be questioned, or a fact or matter that can be determined or verified by resort to sources whose accuracy cannot reasonably be challenged: Cronk v. Canadian General Insurance Co., 1995 CanLII 814, at Part VII. For example, in the context of the internet, the court could likely take judicial notice that Google is a genuine search engine to establish the fact of its existence and its widespread use. However, software programs or “apps” such as WhatsApp, TikTok or Instagram are platforms that, while popular, are not so well known (at least to me) that the general public knows what they are, or how they operate.

[32] In Cronk, Lacourciere J.A. held that the motions judge had erred by doing his own sociological research without giving counsel the opportunity to challenge the results of the studies he relied upon to reach his conclusions. Those studies were found by the appellate court to be beyond the scope of proper judicial notice.

[33] No expert evidence was given about the operation or outward facing dimensions to WhatsApp on which Ms. Virk posted the first video in May 2021 to her own account. I have no way of knowing if Ms. Virk “published” the video by taking this step, or if posting it was tantamount to filing an entry into an electronic diary or sharing thoughts with a chosen confidant. The court cannot conduct its own research outside of the evidence given on a hearing to determine facts. It is for this reason I have not “googled” how WhatsApp, TikTok or Instagram work. Nor have I visited their websites to read if they are accessible by others, and if so, how a member’s user circle or anyone searching the internet may find them.

[34] In the absence of evidence on the nature of these platforms and the access available to them by others, I find that Ms. Kaur has not proven that Ms. Virk “published” this video.

Videos posted in the last week of May 2021

[35] Ms. Kaur has given evidence that the videos and related transcripts referred to as WA17 and WA21 were posted to TikTok. These two videos were marked as Exhibit “D” at trial. WA17 runs 57 seconds long, and also features a female speaker. This video refers to Ms. Kaur by her name “Rashpinder”. After the female voice states that Ms. Kaur somehow contacted her out of anger, the speaker states that she blocked “all of you” and did not respond. The speaker goes on to state that “Soo right after that, you influenced Mandeep, got the vehicle damaged, right?” The references to blocking her calls and to Mandeep are consistent with Ms. Kaur’s assertion that she is the object of the speaker’s narrative.

[36] Ms. Kaur testified that this video suggests by inuendo that she was involved in criminal activity because of the police investigation into the damaged car. She testified that she started getting calls and messages from third parties by text to her telephone number posted on the video. Those calls and messages ranged from the lewd and offensive, to the asking of intrusive personal questions.

[37] Ms. Kaur appended screenshots of her WhatsApp account as exhibits to her affidavit to show the nature of messages she would receive as a result of these videos. She received messages from all over the world, from people she admitted in evidence she had never met. These messages continued on a daily basis over four to five months before they finally abated.

[38] Ms. Kaur stated that she was completing her classes in third year law school and was writing her final exams during this time. She testified she was unable to focus on her studies and suffered a letter grade loss across the board as a result. Her greatest concern was the portrayal in the videos that she was involved in criminal conduct. She told the court that this portrayal impacted her reputation and damaged her standing in the community.

[39] The video identified as WA21 involves an overlay of two female speakers on the visual display, for a total of 3 minutes. The first female speaker refers to “And otherwise too, the car he damaged or whatever else he did, whatever criminal stuff he did, there are places for justice for that, right.” The speaker then states, “But he did such a terrible thing, like that I too had to come and speak, right?”

[40] The second female voice that states that she does not know the first speaker and that she lives in England. The first speaker then responds that she has “definitely met bad people” and later that “I do not think that she has any other motive, right?”

[41] The statements voiced over WA17 and WA 21 are not defamatory as there is no evidence that they refer specifically to Ms. Kaur. After mentioning Rashpinder in the video identified as WA17, the first speaker goes on to state “I have no enmity with you, okay?” The speaker then refers to her belief that Ms. Kaur influenced “Mandeep” and how she feels about him and what he did. There is no aspect of public shaming with respect to Ms. Kaur in this video.

[42] In the video marked WA21 and its voice over, there is an element of a dialog with the other speaker in England. There is no allegation or innuendo of bad character against Ms. Kaur in this video.

[43] In my view, neither of these videos are defamatory to Ms. Kaur. In the event any statement made by Ms. Virk that could be construed as defamatory by the words used or by innuendo in either video, there is no evidence that the videos were viewed by anyone in Ms. Kaur’s community. As a consequence, there is no evidence that her reputation would have been lowered, or that any member of the community would think less of her because of them.

False light claim

[44] This leaves Ms. Kaur’s claim that Ms. Virk has publicly placed her in a false light. If I am to find that she has done so, it would have to be through posting WA0011 to her WhatsApp account. I have found no words that would attract liability for any misstatement of the speaker in the other two videos posted in late May 2021.

[45] The allegations of fact from the statement of claim set out in paragraph 6 above are deemed to be admitted as true by Ms. Virk by default under Rule 19.02(1). In addition to those admissions of fact, I accept Ms. Kaur’s evidence that the Indian community in Brampton is closely knit. Ms. Virk knew, or acted in reckless disregard as to the falsity of the statements she made in video WA0011 that Ms. Kaur had lived in relationships with a number of men, and that she was behind having the car of an innocent person damaged. These statements would be highly offensive to a reasonable person in Ms. Kaur’s position.

[46] It was reasonably foreseeable by Ms. Virk that any rumour or falsehood posted on a private account such as her WhatsApp account could be copied by another person for posting on a platform or app with an outward facing dimension, if not by herself. The re-posted entry could conceivably make the rounds on the internet to provide the public dimension required to prove that the posting was made publicly. While the posting to WhatsApp was not “publishing” in the sense of that term to prove defamation, the posting at source, combined with the reasonable foreseeability that it could be copied to another forum that could publicly place Ms. Kaur in a false light, is sufficient to entitle Ms. Kaur to judgment.

Damages

[47] The Court of Appeal in Paul’s Storage may have overturned Umlauf so that conclusions of law are not deemed to be admitted on default. However, the Court did not disturb the requirements set out by Finlayson J.A. in Umlauf that unliquidated damages must be proven. This is consistent with the principles in Salimijazi and revisited in Paul’s Storage that a plaintiff must prove the facts entitling that party to judgment. For damages, Finalyson J.A. had this to say in Umlauf:

[8] Pursuant to rule 19.05, where a plaintiff's claim on default is for unliquidated damages, the plaintiff must adduce evidence to support his or her claim. In such circumstances, and before making a finding on a motion for unliquidated damages, the trier must be presented with supporting evidence and must weigh the facts in order to make a judicial determination with respect to the quantum of damages to be awarded against the defendant(s) in default. As noted by Borins D.C.J. in Family Trust Corp. v. Harrison (1986), 7 C.P.C. (2d) 1 at p. 6 (Ont. Dist. Ct.):

In my view, the policy of the Rules is to restrict the need for a trial only to those cases where, from the statement of claim, the registrar or the Motions Court Judge is unable to calculate or determine the sum of money to which the plaintiff is entitled. Typically these will be cases in which the plaintiff has sustained damage by reason of the commission of a tort or the breach of a contract. A trial in such cases is necessary, not to prove the tort or breach of contract which is deemed to be admitted by the default, but to require the plaintiff to prove whatever damage it can show it suffered as the measure of recovery cannot be ascertained by recourse to the statement of claim alone. Although the damage sustained by the plaintiff and caused by the defendant is a fact, the measure of damages consequent to the damage is not.

[9] Therefore, where a defendant has been noted in default, unlike liability, unliquidated damages cannot be said to be assumed. That is, in default hearings, facts going to liability are deemed to be true but the facts going to damages must be proven: Beals v. Saldanha (1998), 1998 CanLII 14709 (ON SC), 42 O.R. (3d) 127 at p. 142, 27 C.P.C. (4th) 144 at p. 158 (Gen. Div.), supplementary reasons (1999), 85 A.C.W.S. (3d) 277 (Ont. Gen. Div.).

[48] The evidentiary requirement to establish facts necessary to entitle the moving party to damages was also explored in Fuda v. Conn, 2009 CanLII 1140 (ON SC), [2009] OJ No 188 (QL). In Fuda, Justice Himel explained that in default cases, the court has the jurisdiction and the duty to ensure it is satisfied that the plaintiff is able to prove its claim and the damages it seeks on the civil standard of proof. Justice Himel further held that if the court finds there to be a credibility issue on the evidence, or that the evidence lacks “an air of reality”, it is open for the court to refuse judgment, or to grant partial judgment regardless of the default.

[49] Ms. Kaur must prove her entitlement to unliquidated damages for being placed publicly in a false light under Rule 19.06. It is not sufficient to rely on the amounts claimed in the statement of claim where Ms. Virk has been noted in default. The integrity of any judgment Ms. Kaur obtains will depend on the exercise of the court’s authority to grant judgment on a proper evidentiary basis. This is because the court is asked on a motion for default judgment or at an uncontested trial to grant judgment based on the entitlement of the plaintiff to damages, not on the conduct of the defendant for failing to file a defence.

[50] I refer back to the damages awarded for defamation in Awan by way of analogy. In assessing damages for defamation, Matheson J. said the following about the measurement of damages for the spread of defamatory statements in the internet age:

[192] The factors to consider in determining the quantum of damages for defamation include the following: the plaintiff’s position and standing, the nature and seriousness of the defamatory statements, the mode and extent of publication, the absence or refusal of any retraction or apology, the whole conduct and motive of the defendant from publication through judgment, and any evidence of aggravating or mitigating circumstances: Barrick Gold Corp. v. Lopehandia (2004), 2004 CanLII 12938 (ON CA), 71 O.R. (3d) 416, 187 O.A.C. 238, at para. 30, citing Hill.

[193] In the Internet context, these factors must be examined in the light of the ubiquity, universality and utility of that medium: Barrick, at para. 31.

[51] On the facts of that case, Matheson J. awarded the plaintiff $50,000 for general damages for defamation. On finding that the defendant in Awan was motivated by malice, the court found the injury to the plaintiff was increased. She therefore awarded $30,000 for aggravated damages.

[52] The civil wrong of publicizing a person in a false light is relatively new, which is not surprising as it came in on the tide with social media. The public disclosure of private facts in a false light requires damages to compensate an injured person for significant harm occasioned by publicity that is known to be false, or where the defendant is shown to be reckless with making a false portrayal of the plaintiff’s character in a public way.

[53] Kristjanson J. set out the four factors in Yenovkian for assessing general damages for the false light tort:

a) the nature of the false publicity and the circumstances in which it was made,

b) the nature and position of the victim of the false publicity,

c) the possible effects of the false publicity statement upon the life of the plaintiff, and

d) the actions and motivations of the defendant.

[54] The court in Yenovkian set a high water mark for damages available to a person claiming loss on this kind of claim. In that case, the claimant had claimed only for non-pecuniary damages, not for pecuniary damages. Kristjanson J. awarded $100,000 for the invasion of privacy, finding that the false publicity was egregious and widely disseminated to a wide community. This included the claimant’s church friends and business associates.

[55] Kristjanson J. also found that the claimant had suffered damage as a mother, as an employee, in her Armenian community, and in her church community; that her health and welfare was detrimentally affected; and third parties had commented on the websites and signed the petitions in both the United Kingdom and the USA. Kristjanson J. went on to award damages of $50,000 for the tort of intentional infliction of mental suffering. She also awarded $150,000 in punitive damages to show the disapproval of the court over the conduct of the injuring party, and to deter that party from similar conduct in the future.

[56] I am awarding $5,000 to Ms. Kaur for general damages caused by Ms. Virk’s statements in the video marked WA0011 posted on her WhatsApp account. Even if she did not re-post that video on another outward facing program or app, Ms. Virk knew or ought to have known that it was reasonably foreseeable another person might do so to place Ms. Kaur publicly in a false light.

[57] I have assessed these general damages using the factors set out in Yenovkian for the intentional infliction of mental distress. I have taken into consideration the private nature of the circumstances in which the false publicity arose, Ms. Kaur’s position at the time, and the possible effect of the publicity on her when assessing damages under this heading. The motivation of Ms. Virk in posting this video, except as evident from the video itself, is unknown.

[58] In contrast, the offender in Yenovkian engaged in a cyberbullying campaign against the claimant over a number of years. This campaign took the form of, among other things, stocking an online petition, websites, and YouTube videos with false images and information, and conducting himself in a manner described throughout the decision and summarized briefly at paragraphs 175 to 184. In my view, this conduct was at least 10 times more egregious than Ms. Virk’s act of posting the first video.

[59] I am awarding $30,390 for special damages because of Ms. Kaur’s loss of income as a mortgage agent from July to October 2021. These special damages are calculated on the average monthly income of $10,130 Ms. Kaur earned as a mortgage agent between January and May 2021 before she graduated from law school, less a contingent discount of 25%. These damages are awarded to compensate her for income she might have earned over the four months following the first video. I have not included her income for June 2021 to calculate the amount for the average loss following the video as that income was either from business booked before, or that arose after the video was posted with no effect.

[60] I am not awarding any special damages to Ms. Kaur for the prospective loss of a higher paying articling position. She has not provided a sufficient evidentiary foundation to conclude she would have obtained a “top tier” position but for the videos posted by Ms. Virk. I consider Ms. Kaur’s claim that she would have passed the examinations set by the National Committee on Accreditation with high marks, and would have obtained a higher paying articling position in Ontario but for the video postings, to be too remote to award damages.

[61] Ms. Kaur did not ask for aggravated damages in the statement of claim, and none are awarded here.

[62] It is significant that Matheson J. declined to award any further amount for punitive damages in Awan. She explained that punitive damages are not designed to further compensate the injured party, but to show that the defendant’s conduct has been so egregious, oppressive or high-handed that the court’s sense of decency has been offended. Matheson J. cautioned that punitive damages should only be awarded where the combined award of general and aggravated damages is not enough to achieve the goal of providing punishment and deterrence to the offending party.

[63] The claim for punitive damages is dismissed. Punitive damages may only be awarded in exceptional cases where the court’s sense of decency is offended by the malicious, oppressive or high-handed nature of the defendant’s misconduct: Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC), [1995] 2 S.C.R. 1130. There must be evidence to find that the defendant has committed an “independent actionable wrong” in addition to the ground on which the primary basis liability has been found: Whiten v. Pilot Insurance Company, 2002 SCC 18. Neither circumstance has been found here to support the claim for punitive damages.

Conclusion and costs

[64] Judgment is granted accordingly.

[65] Counsel for Ms. Kaur filed a bill of costs. Ms. Kaur’s actual fees incurred for the action total $4,992.50. She seeks $3,508 on a substantial indemnity basis, or costs of $2,745.87 at a partial indemnity level.

[66] I am granting costs on a substantial indemnity scale as the court refrained from showing disapproval of Ms. Virk’s conduct through an award of punitive damages. Generally, the court will only show that disapproval in one of those two ways. Ms. Kaur is entitled to costs at an elevated scale in the circumstances as the court finds Ms. Virk’s act of posting the video marked WA0011 on WhatsApp knowing it to be false or reckless as to its truthfulness to be egregious conduct.

[67] I find the time spent by Ms. Kaur’s counsel and the hourly rate charged for professional services rendered is appropriate for the time and value the court would expect in a case of this nature. When HST of $455.26 is added, the amount awarded for fees becomes $3,963.26. I find this amount to be fair and reasonable under all circumstances. In addition to the fees claimed, I award disbursements in the amount of $1,814.

[68] Ms. Kaur is therefore granted her costs of the action totalling $5,777.26.

Emery J.

Released: November 29, 2022

COURT FILE NO.: CV-21-2050-00

DATE: 2022 11 29

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

RASHPINDER KAUR

Plaintiff

• and -

HARVINDER VIRK a.k.a. TAAJVEER VIRK

Respondent

REASONS FOR JUDGMENT

Emery J.

Released: November 29, 2022