Court File and Parties

COURT FILE NO.: CV-22-00685428-0000 DATE: 2023-07-04 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: STRATUSCENT INC. and KARIM ALY, Applicants AND: KARAM CHEHADE, Respondent

BEFORE: SHIN DOI J.

COUNSEL: Matthew Diskin and Kishan Lakhani, for the Applicants Respondent, Self-Represented

HEARD: May 23, 2023

Endorsement

[1] The applicants, Stratuscent Inc. and Karim Aly (the “Applicants”), seek a declaration that the respondent, Karam Chehade (the “Respondent”), made defamatory statements about the Applicants and related parties; a permanent injunction enjoining the Respondent from making any further defamatory statements and making further threats to defame the Applicants and any related parties; and an order requiring the Respondent to remove the website www.stratubaba.com from the internet and not to re-post it or an similar comments in any forum.

[2] For the reasons below, I find that the Respondent made defamatory statements about Karim Aly (the “Applicant Aly”) and order a permanent injunction enjoining the Respondent from making any further defamatory statements and from making further threats to defame the Applicant Aly.

[3] I dismiss the application regarding alleged defamatory statements made against the applicant Stratuscent Inc. (the “Applicant Stratuscent”) because the Respondent largely focused on the individual Applicant Aly in the statements and the Respondent argued truth and fair comment with respect to the statements made about the Applicant Stratuscent’s product Noze.

[4] I also dismiss the application regarding the website, www.stratubaba.com because at the time of hearing of the application, the website had been removed from the internet and there was insufficient evidence of the alleged statements or defamation.

[5] The dismissals are without prejudice to the Applicants to bring an application in the future with additional evidence including but not limited to re-posting of the website with defamatory content.

Criminal Charge – Harassment

[6] On or about March, 2022, the Quebec Ministry of Justice laid criminal charges against the Respondent in response to complaints filed by the Applicant Aly and his spouse about the Respondent’s conduct. The Quebec Ministry of Justice issued an arrest warrant for the Respondent for criminal harassment, threatening a person, extortion, and identity fraud pursuant to the Criminal Code, RSC 1985, c. C-46. The warrant for the Respondent’s arrest remains outstanding because the Respondent resides in Ontario.

[7] The Applicants submitted evidence that the Respondent stated that he needed an injunction from the court to stop him from his conduct. The Applicants now seek an injunction enjoining the Respondent from making defamatory statements and making threats.

Defamation

[8] As set out by Schabas J. in Bukhari v. Rahman, 2021 ONSC 4655 at para. 25, a plaintiff must establish three things in order to establish defamation:

(1) the defendant made a defamatory statement, in the sense that the impugned words would tend to lower the plaintiff’s reputation in the eyes of a reasonable person;

(2) the words in fact referred to the plaintiff; and

(3) the words were communicated to at least one person other than the plaintiff: Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640, at para. 28.

[9] The Applicants have clearly established defamation by the Respondent against the Applicant Aly. Since 2019, the Respondent made defamatory statements about the Applicant Aly to his alma mater and employer, Concordia University; his alma mater, INSEAD business school; Immigration, Refugees and Citizenship Canada; Quebec Ombudsman; Service de police de la Ville de Montreal; and news media. The Respondent stated in various emails:

a. that the Applicant Aly (and his spouse) are “sneaky and sly”…and greet you with a “fraudsters smirk”;

b. that the Applicant Aly was accused of “possessing child pornography on his computer in the UAE while he absconded with company funds to Canada”;

c. that the Applicant Aly “absconded from criminal accusations re: fraud leveled against him by his fellow shareholders”;

d. that the Applicant Aly was involved in “black market immigration business” and working in the “black market faulty COVID-19 technology for obvious nefarious reasons;

e. that the Applicant is part of the “immigration fraud mafia to Canada from the UAE”; and

f. that the Applicant Aly is a “dangerous criminal fraudster”.

[10] The impugned words would tend to lower the Applicant Aly’s reputation in the eyes of a reasonable person; the words in fact referred to the Applicant Aly; and the words were communicated to others.

[11] The Respondent made comments about the Applicant Statuscent and its product, Noze. The Respondent argued that his comments were true and fair given that there was a claim that the product could detect COVID-19. The Respondent argued that the product had been designed for other purposes years ago. The Respondent stated that the product was “murderous” but the comments largely focused specifically on the individual Applicant Aly who was the CEO of the company. The Respondent in his statements to third parties was careful to say, “specifically the CEO.”

[12] Further, the website which served as a forum by which the Respondent disseminated defamatory statements about the Applicant Stratuscent as well as the Applicant Aly has been removed by the Respondent. There is insufficient evidence of defamatory content that was previously on the website. The Applicants submitted hyperlinks to the defamatory content on the website but those hyperlinks as well as the website are now defunct. The Applicants relied on a screenshot of the website that was part of the Respondent’s record but the screenshot only showed folders and not the specific content that was posted on the website. As held in the Supreme Court of Canada decision in Crookes v. Newton, 2011 SCC 47, and cited in Bagwalla v. Ronin et al. 2017 ONSC 6693 at para. 24, “that, for the purposes of defamation law, making reference to the existence and/or location of content by hyperlink or otherwise, without more, is no publication of that content…”

[13] The parties submitted evidence of deplorable statements exchanged between the Respondent and his sisters, Ms. Nada Chehade (the Applicant’s spouse) and Ms. Diala Chehade. Neither Ms. Nada Chehade or Ms. Diala Chehade are parties to this application.

Injunction for Defamation

[14] In Bagwalla v. Ronin et al. at para. 19, the Divisional Court held that when injunctive relief is sought in the context of a defamation action, the following criteria must be met:

(1) The publication complained of must be clearly defamatory;

(2) If the Defendant states an intention to justify or to rely on fair comment, the injunction must be refused unless it is clear that any such defence will inevitably fail; and

(3) The Plaintiff must establish irreparable harm if the injunction is refused.

[15] This case meets the test for injunctive relief in the context of defamation as against the Applicant Aly: the statements made to the third parties are clearly defamatory as set out above; it is clear that any defence of fair comment will inevitably fail; and the Applicant Aly has established irreparable harm if the injunction is refused.

[16] It is clear that any defence of fair comment about the Applicant Aly will inevitably fail because the statements are baseless. While Concordia University, INSEAD, and others to whom the comments were communicated eventually set the comments aside, the Applicant Aly suffered reputational harm that cannot be compensated by damages. In particular, the Applicant Aly had to engage with each institution that received the defamatory statements from the Respondent. In one instance, the Respondent demanded that INSEAD revoke the Applicant Aly’s degree. The Respondent further alleged that the Applicants operated an international immigration fraud syndicate. If the injunction is refused, there is a likelihood that the Applicant Aly and his initiatives would be under continuous scrutiny and embarrassment due to the nature of the allegations, and the Applicant Aly will continue to suffer irreparable harm.

[17] I find that the criteria for injunctive relief are not satisfied with respect to the Applicant Stratuscent. As analyzed above, the case for defamation against the Applicant Stratuscent is not evident because the statements largely focused on the Applicant Aly and the website, which was alleged to be one of the modes of dissemination, was taken down. Further, it is not clear that the Respondent’s defence of fair comment will fail given that the technology is novel. There was a lack of evidence submitted by the Applicant Stratuscent about the efficacy of the technology. There was also insufficient evidence that the Applicant Stratuscent would suffer irreparable harm if no injunction is granted. There was no evidence that the Applicant Stratuscent had suffered irreparable harm due to the Respondent’s comments. The Applicants submitted that significant funding from the Gates Foundation was recently obtained by the Applicant Stratuscent.

[18] The test for a permanent injunction for defamation is set out in Astley v. Verdun, 2011 ONSC 3651 at para. 21, in which Chapnik J. stated as follows:

Permanent injunctions have consistently been ordered after findings of defamation where either: (1) there is a likelihood that the defendant will continue to publish defamatory statements despite the finding that he is liable to the plaintiff for defamation; 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…

[19] The Court of Appeal in St. Lewis v. Rancourt, 2015 ONCA 513 held at para. 16,

A broad ongoing injunction is an extraordinary remedy which should be used sparingly. However, where there has been a campaign of defamation and a likelihood that it will continue, there is authority for such an order. See: Barrick Gold Corp. v. Lopehandia (2004), 71 O.R. (3d) 416 (C.A.), at para. 78; Astley, at para. 35; Ottawa-Carleton District School Board v. Scharf, [2007] O.J. No. 3030 (S.C.), aff’d 2008 ONCA 154, at para. 30(b), leave to appeal refused, [2008] S.C.C.A. No. 285.

[20] The record establishes that there has been a campaign of defamation and there is a likelihood that the Respondent will continue to publish defamatory statements against the Applicant Aly. The Respondent continued his conduct despite an arrest warrant for criminal harassment and extortion.

[21] The Applicants submitted evidence that the Respondent tried to extort money from the Applicant Aly and his spouse to stop making defamatory statements. The evidence also shows that the Respondent would continue making such statements. The Respondent specifically stated, “I will keep doing this to them,” and “I have only started and have yet to quench my thirst…” The Respondent’s conduct was intentional and reckless. Accordingly, the tests for a permanent injunction for defamation are met.

[22] As held in St. Lewis v. Rancourt, at para. 17, I do not accept the Respondent’s submission that his constitutional right to freedom of expression affords him the right to defame. The Respondent led no evidence or argument that the Respondent’s legal proceeding is a government action that would engage the Charter. Moreover, the Respondent did not submit any evidence to bring himself within any Charter-based defence.

[23] I order a permanent injunction against the Respondent enjoining him from defaming the Applicant Aly and making threats to defame the Applicant Aly.

[24] For the reasons set out above, I dismiss the application regarding alleged defamatory statements made against the Applicant Stratuscent and the application to remove the website, www.stratubaba.com. The dismissal is without prejudice to the Applicants to bring applications in the future with additional evidence.

[25] Given the outcome of the application, I order the Respondent to pay the Applicant Aly costs on a partial indemnity basis in the sum of $15,000.

JUSTICE SHIN DOI Released: July 4, 2023