Court File and Parties

COURT FILE NO.: CV-21-00060548-0000 DATE: 2023-04-24

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

The Seafarers’ International Union of Canada Plaintiff/Moving Party Adrienne Zaya, counsel for the Plaintiff

- and -

Amanda Mitchelitis Not appearing Defendant/Responding Party

HEARD: March 13, 2023, at St. Catharines

REASONS FOR JUDGMENT The Honourable Justice J. R. Henderson

Introduction

[1] The plaintiff, the Seafarers’ International Union of Canada (“SIU”), commenced this action in response to defamatory statements published by the defendant on internet-based social media accounts. In the statement of claim, the SIU requests general, aggravated, and punitive damages for defamation, as well as an interim and permanent injunction.

[2] Despite several extensions of time, the defendant failed to deliver a statement of defence. The defendant was noted in default on May 30, 2022. On December 15, 2022, Walters J. granted default judgement in favour of the plaintiff and ordered an uncontested hearing for the assessment of the plaintiff’s damages.

[3] The damages hearing was held on March 13, 2023. In support of its position, the SIU relied upon the deemed admission of the facts alleged in the statement of claim, and the evidence provided in the affidavits of SIU’s President James Given, and SIU’s Public Affairs and Communications Officer Cody Given.

[4] At the conclusion of the hearing, I granted a mandatory injunction requiring the defendant to remove from any website or social media account any disparaging statement about the SIU, and a permanent injunction enjoining the defendant from publishing or broadcasting any further statements concerning the SIU.

[5] This is my decision on the SIU’s claim for damages and costs.

The Facts

[6] The SIU is a labour union with offices in Ontario and Quebec. It represents the majority of unlicenced Canadian sailors working aboard vessels on the Great Lakes, the St. Lawrence River, and the east and west coasts. I accept that the SIU works closely with government officials, agencies, and departments at the provincial and federal levels with respect to issues that involve the safety, security, and stability of Canadian sailors.

[7] The defendant was a member of the SIU at one time, but she had ceased being a member prior to the events giving rise to this action.

[8] In early October 2021, the Canadian government implemented an action plan with respect to the COVID-19 pandemic that included a requirement for federally regulated transportation sector employers to establish vaccination policies for their employees.

[9] Consequent to the government action plan, the SIU decided to conduct a survey of its members about their attitudes toward a mandatory vaccination policy. On October 8, 2021, the SIU sent a COVID survey to all of its members who had provided a current email address. The COVID survey was successfully delivered to 1,474 of the 1,476 email addresses on file. Three hundred and sixty-six members completed and returned the survey, the results of which were overwhelmingly in favour of a mandatory vaccination policy.

[10] On October 29, 2021, the SIU executive published a post on the SIU’s Facebook account confirming that the SIU had conducted a survey of its members and that the vast majority of its members approved of a mandatory vaccination policy. I note that the SIU Facebook account had a “public” setting and it was therefore accessible by anyone who had internet access.

[11] The defendant also had a Facebook account. I find that at all relevant times the defendant’s Facebook account also had a “public” setting, and therefore all posts to her account were accessible by anyone who had internet access.

[12] On November 5, 2021, the defendant published her first defamatory statement about the SIU by posting a statement to her Facebook account that included the following words: “I know that the union falsified their results with the survey. They asked 2,000 of 3,600 members…”. She later posted a comment, “Who didn’t get a survey?”

[13] I accept that the defendant’s publication of November 5, 2021, was defamatory. As of November 5, 2021, the defendant was not a member of the SIU, the defendant did not have access to the SIU membership lists, and the defendant was not part of the COVID survey. There is no evidence to suggest that the publication was true or justified. Moreover, the allegation in the statement of claim that the publication was defamatory is deemed to be admitted.

[14] Counsel for the SIU sent a libel notice to the defendant that requested, among other things, that the defendant remove the defamatory statement from her Facebook account. In response, the defendant sent an email to SIU’s counsel dated November 17, 2021, in which she stated that her Facebook post was made on her private account and that it was not public. She also stated that she had deactivated her Facebook account. I find that both of these statements were untrue. The offending statement was not removed from the defendant’s Facebook account.

[15] The defendant was personally served with the statement of claim in this action on January 4, 2022. The next day, January 5, 2022, the defendant published her second defamatory statement about the SIU. She did so by posting comments on the SIU Facebook account. Among other things, the defendant commented that, “Not everyone got the survey”, “almost half the membership was not contacted”, and “they are using union dollars to sue me…”.

[16] The SIU then brought a motion for an interlocutory injunction. On two occasions, the motions judge granted extensions of time for the defendant to deliver her statement of defence. The defendant failed to do so.

[17] The SIU, through counsel, on November 4, 2022, served the defendant with its default judgment motion record. On November 24, 2022, the defendant published a third defamatory statement by making a post to her Facebook account that included the words, “They are spending hard earned union dues because I said they lied about a survey. I spoke the truth.” She added, “Why are they spending so many of your dollars suing me?”

[18] On December 15, 2022, Walters J. granted default judgment to the SIU and ordered a hearing for an assessment of the plaintiff’s damages. A copy of that endorsement was sent by SIU’s counsel to the defendant.

[19] In response, on January 19, 2023, the defendant sent a return email to SIU’s counsel. I find that the defendant’s responding email was lengthy, abusive, and insulting. Among other things, the defendant wrote, “I’ll slit my throat before your pig clients take my fucking welfare check and I will speak the truth for as long as I live.” She also wrote, “Your client sued me for defamation a mere two weeks after I informed them I would be making a complaint about their practices to the Ontario Labour Board.”

[20] On the same day, January 19, 2023, the defendant sent SIU’s counsel a screenshot of a post the defendant had made to her Facebook account that day. The post included the following words: “This is the email I wrote to Josh Sanders of the Seafarers’ International Union of Canada two or three weeks before they sued me for defamation. I told them I’d be making a complaint about them to the Labour Board. Coincidence?” I find that this post is the fourth defamatory statement.

Analysis

A. General Damages

[21] In order to succeed in a defamation action, as discussed in Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640 at para. 28, the plaintiff must prove that the impugned words were published, that the impugned words refer to the plaintiff, and 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.

[22] General damages in a defamation case are presumed from the publication of the false statement; the plaintiff is not required to prove actual loss or injury: see Grant at para. 28, Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130 at para. 164, Rutman v. Rabinowitz, 2018 ONCA 80 at para. 62 (“Rutman (ONCA)”), and Sommer v. Goldi, 2022 ONSC 3830 at para. 32.

[23] The purpose of an award of general damages in a defamation case is to provide consolation for the plaintiff’s distress, hurt and humiliation, to provide compensation for the plaintiff’s loss of reputation, and to provide vindication of the plaintiff’s damaged reputation: see Walker v. CFTO Ltd. (1987), 59 O.R. (2d) 104 (C.A.) at para. 24, Sommer at para. 33, and Rutman v. Rabinowitz, 2016 ONSC 5864 (“Rutman (ONSC)”) at para. 214, aff’d Rutman (ONCA) at para. 76.

[24] In Hill, at para. 182, the Supreme Court of Canada provided a list of factors that should be considered in the assessment of general damages for defamation, which includes the conduct of the plaintiff, the plaintiff’s position and standing, the nature of the libel, the mode and extent of the publication, the absence or refusal of any retraction or apology, and the whole conduct of the defendant.

[25] An important factor in the present case is the use of internet-based social media accounts. The publication of a defamatory statement on the internet usually gives rise to a higher award of general damages than a defamatory statement that is published in a different medium. This is because the internet provides world-wide instantaneous access to any statement that is published on a public platform. Further, it is very difficult to remove such a statement from the internet or control the degree of dissemination of the statement. In addition, it is difficult to determine how many people access a defamatory statement as the number of viewers cannot be accurately measured, and anyone who views the statement can download it, copy it, or share it: see Rutman (ONCA) at para. 68, and Barrick Gold Corp. v. Lopehandia (2004), 71 O. R. (3d) 416 (C.A.) at para. 31.

[26] In the present case, the evidence is that the defendant had 160 Facebook friends, 60 of whom were SIU members. The SIU Facebook page had 6,210 followers. I infer that most of the people who viewed the posts would have been the defendant’s Facebook friends or the SIU’s followers, although it is possible that the posts were also viewed by some undetermined number of non-friends/followers.

[27] In summary, I find that the defendant’s use of an internet-based public platform to publish defamatory statements is an aggravating factor regarding general damages because the statements were widely accessible to a large number of viewers, it is impossible to ascertain the number of people who viewed the defamatory statements, and it is impossible to calculate the degree to which they have been disseminated.

[28] Regarding the extent and nature of the publications, I find that the defendant made four defamatory statements, namely the posts of November 5, 2021, November 24, 2022, and January 19, 2023, to the defendant’s Facebook account, as well as the post of January 5, 2022, to the SIU’s Facebook account.

[29] The first three publications made by the defendant clearly call into question the honesty and integrity of the SIU regarding the COVID survey. Further, in her most recent post on January 19, 2023, the defendant implies that the SIU acted dishonestly as a form of vengeance or retribution in response to the defendant’s threat to file a complaint with the Ontario Labour Board.

[30] As to the conduct of the defendant, I do not accept the submission that the defendant engaged in an intensive campaign against the SIU. I find that the defendant did not believe, or did not want to believe, the results of the COVID survey. This motivated her to, without any cause, lie about the integrity of the SIU hoping to undermine the results of the survey. In doing so, I accept that she acted intentionally and with malice, but her comments were focused on the survey.

[31] However, after the initial defamatory statement, the defendant’s actions compounded the problem. After she received a libel notice, she did not apologize or withdraw the offending post; rather, in a transparent attempt to mitigate her misconduct, the defendant lied to SIU’s counsel about deactivating her Facebook account and lied about the privacy settings on her Facebook account.

[32] Then, after she was served with the statement of claim, the defendant again did not apologize or withdraw the post, but instead she repeated the defamation in a post to the SIU’s Facebook account. Further, even after the defendant had been served with the motion for default judgment, she published two more derogatory posts. In my view, this behaviour establishes that the defendant is unapologetic and shameless. I find that this after-the-fact conduct of the defendant is an aggravating factor.

[33] As to the context of the defamatory statements, it is important to remember that at the time of the initial defamatory post in November 2021, the country was in the midst of the worst world-wide pandemic in 100 years. The health and safety of every citizen was a prominent concern for all governments and all employers. In those circumstances, the defendant attempted to undermine legitimate attempts by the SIU to ascertain the attitudes of its members with respect to vaccination policies. Thus, the defendant attempted to subvert honest attempts by the SIU to deal with a very serious health and safety issue.

[34] The primary mitigating factor in the assessment of damages in this case is that the defendant’s attack on the SIU was not extensive or sophisticated. That is, it was not like the Rutman case in which the defendant impersonated several different people for the purpose of posting derogatory remarks on a professional review website. In the present case, there was only one post before the statement of claim was served, one post the day after the statement of claim was served, and two posts during the proceedings. In total, there were four defamatory posts over the course of about fourteen months, and three of the four posts focused only on the legitimacy of the COVID survey.

[35] In requesting general damages of $250,000, counsel for the SIU submits that the range of damages for civil defamation cases is $100,000 to $425,000. Counsel primarily relies on the decisions in Rutman, Sommer, and Nazerali v. Mitchell, 2018 BCCA 104. In my view, the fact situations in those decisions are quite different than the facts in the present case. Thus, I find that the range of damages suggested by counsel does not apply.

[36] In Nazerali, the plaintiff was a businessman. The defendant published a series of lengthy articles on his website falsely portraying the plaintiff as a gangster, arms dealer, and drug trafficker with links to Al Qaeda and ties to the Russian and Italian Mafias and Saudi Arabian intelligence. The trial judge found this was “a calculated and ruthless campaign to inflict as much damage” as possible on the plaintiff’s reputation with no regard for the truth of his statements. The plaintiff suffered emotional pain and damage to business relationships he built up over many years. The trial judge awarded general damages of $400,000. The B.C. Court of Appeal commented that the award was on the high side but upheld the trial judge’s decision.

[37] In Rutman, the plaintiff was an accountant who was the target of an extensive campaign by a former business associate. The defendant published defamatory statements alleging he was a thief and a cheat who engaged in money laundering and tax fraud. These statements, the court found, were "undoubtedly the worst, most harmful things imaginable that could be said about an accountant and tax advisor." The defendant’s campaign included false posts to a website that published reviews of professional accountants and included the defendant falsely posing as different persons in order to make derogatory posts. The decision of the trial judge to award general damages of $200,000 was upheld on appeal.

[38] In the Sommer case, the plaintiff was a lawyer who was the target of an internet campaign by the defendants. The defendants posted a series of statements in which they alleged that the plaintiff was part of a conspiracy that claimed many of the artworks of Norval Morisseau were fraudulent. The trial judge found the defendants embarked on a “systematic,” “serious prolonged campaign” spanning six plus years with the intention of maligning the plaintiff in his professional capacity. The trial judge awarded the plaintiff general damages of $300,000.

[39] There are two distinct differences between the above-mentioned decisions and the present case. First, in each of Nazerali, Rutman, and Sommer, as well as in most of the decisions referenced in those cases, the defendant embarked on an intensive, extensive, and sophisticated campaign designed to cause the plaintiff as much personal distress and reputational loss as possible.

[40] In contrast, the defendant in the present case attacked the honesty and integrity of the SIU but did so in a sporadic and unsophisticated manner. It is difficult to categorize the defendant's actions in this case as a “campaign” against the SIU. Rather, it was the repetition of the same initial lie on a few occasions.

[41] Second, the plaintiff in the present case is an artificial entity, not a personal entity. The SIU is an unincorporated trade union and as such more closely resembles a corporate plaintiff than an individual plaintiff. It is well established that a corporate plaintiff is incapable of suffering personal distress or hurt feelings, and thus an award for mental anguish is not available. A corporate plaintiff may only receive damages for injury to its business reputation.

[42] In Walker, the court wrote, at para. 25: Here, the plaintiff whose compensatory award is under attack is a corporation. Unlike a natural person, a corporation is an artificial entity and as such has no reputation in the personal sense which can be defamed by words which would affect the purely personal reputation of an individual.

[43] The court in Walker, at para. 27, confirmed that a corporation cannot be injured in its feelings, it can only be injured in its pocket. Consequently, unlike an individual, a corporation is not entitled to compensation for injury to hurt feelings or, it follows, to compensation by way of aggravated damages for a loss of this nature.

[44] The plaintiffs in Nazerali, Rutman, and Sommer were individual professional people. In each case, the plaintiff’s personal reputation was his primary asset, the loss of which would cause significant mental distress and significant impairment of his ability to carry out business. I accept that the SIU, as a labour union, is expected to act with the utmost integrity; it is mandated to honestly and fairly represent its members. However, damage to the reputation of an individual professional person is generally far greater than damage to the reputation of a corporate entity.

[45] Also, in Walker, at para. 27, the court accepted a statement that a corporation generally will not be entitled to a large award for loss of reputation unless actual economic loss is established. In the present case, the SIU has not attempted to show actual economic loss.

[46] In my view, the present case is better compared to the decisions in which corporate plaintiffs have been awarded compensatory general damages for defamation, where the plaintiff was unable to prove actual economic loss.

[47] In Scotia Capital Inc. v. Aphria Inc., 2021 ONSC 1469, the defendant, Aphria, counterclaimed against Scotia Capital for defamation as a result of a Scotia Capital director announcing that Scotia Capital would discontinue analyst’s coverage for the defendant. Although Aphria alleged that the announcement caused a reduction in Aphria’s share price, the trial judge found that there was no way to know if the reduction was because of the director's comments. Therefore, there was no proof of actual economic loss.

[48] Gilmore J. wrote, at para. 258, that without proof of economic loss, the range of general damages for defamation of this nature for a corporate claimant was $10,000 to $75,000. In coming to that conclusion, Gilmore J. relied on a number of decisions, including Ironside v. Delazzari, 2014 ONSC 999 ($50,000), Farallon Mining Ltd. v. Arnold, 2011 BCSC 1532 ($40,000), and Focus Graphite v. Douglas, 2015 ONSC 1104 ($25,000).

[49] The Ontario Court of Appeal decision in Barrick Gold is the leading case on internet defamation of a corporate entity. In that case, the defendant engaged in a prolonged and malicious internet campaign that was intended to hurt the business reputation of the plaintiff corporation. The appellate court set aside the trial judge’s decision and awarded general damages of $75,000 and punitive damages of $50,000.

[50] In my view, the Barrick Gold decision is the high-water mark for general damages in these cases. I generally accept the range of general damages as provided by Gilmore J. in Scotia Capital; however, given that Barrick Gold was decided in 2004, I find that the upper end of the range could be as high as $100,000.

[51] There is support for this range of damages in Mina Mar Group Inc. v. Divine, 2011 ONSC 1172. In that case, the plaintiff was a Canadian corporation that was subjected to “profuse postings” on websites and bulletin boards in which the plaintiff corporation and its principal were described as “a thief”, “a crook”, and “dishonest”. Perell J. awarded general damages of $50,000 as partial default judgment and allowed the plaintiff corporation to reserve its right to claim and prove actual pecuniary loss at a later date.

[52] I also rely on the decision in Cable Assembly Systems Ltd. v. Barnes, 2019 ONCA 1013. The plaintiff corporation in that case was a long-time supplier and installer of cable for the City of Brantford. After a falling out between a City manager and the principal of the plaintiff corporation, the City manager engaged in a campaign to discredit the quality of the plaintiff’s work. The trial judge’s award of general damages of $75,000 was upheld on appeal.

[53] I find that the severity of the defamation in the present case, considering all of the factors I have enumerated, does not reach the levels of the fact situations in Barrick Gold or Cable Assembly. The present case is very similar to the fact situation in the Mina Mar case. Therefore, I award general damages to the plaintiff in the amount of $50,000.

B. Aggravated Damages

[54] Aggravated damages are compensatory in nature. They are to be awarded where the defendant’s conduct has been particularly high-handed or oppressive, where the defendant was motivated by actual malice, and where the outrageous conduct of the defendant has increased the plaintiff’s humiliation and anxiety: see Hill at paras. 188-91.

[55] However, aggravated damages are only awarded as compensation for mental distress, humiliation, and anxiety. As I stated previously, the SIU is a labour union, not a person. The SIU is incapable of suffering mental distress, humiliation, and anxiety. Therefore, I will not award aggravated damages.

C. Punitive Damages

[56] Punitive damages are not compensatory. They will be awarded where the conduct of the defendant is so reprehensible, oppressive, and high-handed that it offends the court’s sense of decency. Punitive damages are intended to denounce and deter the defendant, and they should only be awarded where the combined award of general and aggravated damages would be insufficient to achieve the goal of punishment and deterrence: see Hill at paras. 196-99.

[57] Throughout the course of this litigation, I find that the defendant has repeated her defamatory statements, rather than apologizing or withdrawing them. In particular, her email to counsel of January 19, 2023, indicates that she does not plan to stop making defamatory posts and does not intend to pay any money to the SIU for damages. Moreover, after the action was started, the defendant sought to further undermine the integrity of the SIU by suggesting that the conduct of the SIU was in retaliation for her potential complaint to the Ontario Labour Board.

[58] All of this conduct by the defendant suggests that she is shameless, unapologetic, and ungovernable. Considering the quantum of general damages in this case, I find that punitive damages are required to denounce and deter the defendant. I fix punitive damages at $25,000.

Costs

[59] The plaintiff requests substantial indemnity costs. I accept that substantial indemnity costs should only be awarded if the defendant has engaged in egregious conduct that requires denunciation by the court. I find that this is one of those cases.

[60] I repeat that I find that the defendant repeated her defamatory statements over the course of the legal proceedings, rather than apologizing or withdrawing the defamatory statements. Immediately after she was served with the statement of claim, she repeated her initial defamatory statement, and repeated it again when she was served with the motion record. Moreover, her correspondence with SIU’s counsel was abusive and threatening.

[61] I also find that the defendant has prolonged this action, as the defendant received extensions of time to file her pleadings, yet she chose to not file any statement of defence. Along the same lines, because the defendant made further defamatory comments after the action was started, the plaintiff was required to file additional affidavit and motion material.

[62] Therefore, I award the plaintiff its substantial indemnity costs in the amount of $17,175 all-inclusive, payable within 30 days.

Conclusion

[63] For the above-mentioned reasons, I hereby order and adjudge:

1. The plaintiff is awarded general damages payable by the defendant in the amount of $50,000.
2. The plaintiff is awarded punitive damages payable by the defendant in the amount of $25,000.
3. The defendant shall pay the plaintiff’s costs fixed in the amount of $17,175, payable within 30 days.

J. R. Henderson J.

Released: April 24, 2023