Court File and Parties

Court File No.: 29089/22 Date: 2023-07-24 Ontario Superior Court of Justice

Between: Fredrick Robinson, Plaintiff And: Jeanette Niganobe, Defendant

Counsel: John A. Nicholson, for the Plaintiff Heard: July 4, 2023

Before: Gareau J.

Reasons for Judgment

[1] This is an action for defamation. The defendant did not defend the action. No statement of defence was filed. By order granted on April 13, 2023 by Varpio J., this action proceeded to an uncontested trial. That trial took place on July 4, 2023.

Background

[2] The plaintiff gave viva voce evidence at the trial. Jenna Barry, the plaintiff’s daughter, Lee Ann Gamble, the plaintiff’s sister-in-law, and Lorrie Barry, the former spouse of the plaintiff all provided viva voce evidence to the court.

[3] The plaintiff Frederick Robinson is a member of the Batchewana First Nation. He is connected to a great number of people in Batchewana and has a large family there, including many relatives. Mr. Robinson is a business owner at Batchewana, having opened the Effin Jae’s Smoke Shack in 2018 (herein referred to as the “Smoke Shack”). The plaintiff and the defendant were both involved in the business.

[4] The plaintiff and the defendant met in February 2017. Three months into their dating relationship, the defendant became pregnant with the plaintiff’s child and their daughter Nakina was born on April 17, 2018. The parties remained a couple for two and a half years.

[5] It was the evidence of Frederick Robinson that the defendant, Jeanette Niganobe, worked along side him at the Smoke Shack and that they ran the business together as partners. The defendant was the manager of the Smoke Shack and handled all the technological aspects of the business as she “was more computer savvy”, as the plaintiff put it in his evidence. The defendant was also actively involved in the social media accounts for the Smoke Shack and created and maintained the Facebook account for the business. It was the evidence of the plaintiff that the defendant told him that there was over two thousand followers on the Facebook account of the Smoke Shack and the plaintiff also observed this personally when he looked on Facebook.

[6] Although the Smoke Shack struggled the first six months after it was opened, it eventually became a profitable business. It is the plaintiff’s view that the defendant became obsessed with the money which “went to her head”. Mr. Robinson describes Ms. Niganobe as becoming “arrogant and bossy”.

[7] It all came to head on September 8, 2020, on a trip to Thunder Bay, Ontario. The plaintiff testified that the defendant “kicked me out of my hotel room” and that his daughter stayed with her mother while he left and returned to Sault Ste. Marie, Ontario. The parties have remained separated and have been embroiled in family law proceedings, primarily concerning their daughter, Nakina.

The Defamatory Posts

[8] The plaintiff testified that it was after he and the defendant separated that the defendant began posting messages on the Smoke Shack Facebook account about him, which were false and defamatory. Entered as Exhibit 1 is a Facebook message dated September 30, 2020. What is written in the message and the context makes it clear that this message was written by the defendant about the plaintiff. In the September 30, 2020 post, the defendant depicts the plaintiff as someone who is abusive, has an addiction problem, abandoned his family emotionally and financially. As is stated in the Facebook post, “has closed our accounts...left us homeless without money and emotionally, mentally, spiritually and financially abused”. The defendant goes on to state, when describing the plaintiff, that “his addiction is first and foremost his main concern and hiding it and saving face”. In the Facebook message the defendant argues that people should not “feed this business” as people should “know that you are now supporting a business that feeds his drug habit and our local community drug dealers”.

[9] It is obvious that this Facebook message was seen by individuals in the community as there are numerous responses to it, such as “praying for you and hope you can recover”, and “I wont be going there anymore”, and “I am so sorry this has happened to you. I am praying for you and your children dear. I hope you are able to heal from this. I will no longer support this business.”

[10] There is another similar Facebook post by the defendant on the Smoke Shack Facebook page that is dated October 3, 2020. In that Facebook post there is a picture of the daughter of the parties, Nakina. As with the previous Facebook entry the message and context makes it patently obvious that this is written by the defendant about the plaintiff. That entry talks about the plaintiff abandoning his daughter and statements are made such as, “what type of values and morals did this man’s parents instill in this boy. None obviously”, and “drug has changed so many people and taken our families”, and “But these drugs change people for the worse and it’s so very hard to reach them.”

[11] A further post at 10:52 the same day comments that “this store is still running and is still supporting the local drug dealers in the community”, and “I would not take his abuse and violence no more”, and “this family is creating and harboring a monster and the truth always comes out.” There is a response from a follower of the Facebook to this message that reads, “It’s all coming Fred, it’s all gonna come out.”

Impact on the Plaintiff and His Business

[12] Frederick Robinson testified that the man that Jeanette Niganobe depicts in the aforementioned Facebook messages is not the man that he is. Mr. Robinson testified that he is not a drug addict, that he is not a consumer of illegal drugs, and that he is not supplying any drug dealers with drugs or purchasing drugs from any drug dealers. As to withdrawing the defendant from the business account, it was the evidence of the plaintiff that he did this because the defendant had removed well over $20,000 from the account, so he reacted accordingly. Mr. Robinson testified that he never abused the defendant in any way nor has he abandoned the defendant or his daughter, Nakina.

[13] It was the evidence of the plaintiff that his inability to have ongoing contact with his daughter Nakina was due to allegations made by the defendant in family law proceedings, including child protection proceedings. The defendant made the allegation that the plaintiff sexually abused Nakina and that she was unsafe to be around him. This resulted in the plaintiff’s contact with his daughter to be restricted by supervised access at the supervised access facility. Within the child protection proceedings in the Ontario Court of Justice, Peterson J. made the following comment at paragraph 37 in a written decision released on November 10, 2022:

Mr. Robinson may have left Ms. Niganobe and Nakina in Thunder Bay in September 2020, but for the past year and a half, he has done everything he can to be a good parent to Nakina and to increase his parenting time with her. I believe that it is in Nakina’s best interest to spend more supervised time with her father. I find that the child’s half-sister, Jenna Barry, is an appropriate supervisor. Other third-party supervisors may be approved by NCFS.

[14] Frederick Robinson testified that the allegations of his sexual abuse toward his daughter Nakina have been disproven, that he was subject to a psycho-sexual assessment in which he scored “zero” as a risk and that he now has unsupervised access to his daughter.

[15] The plaintiff testified that he stopped going into the Smoke Shack store on a regular basis as “I couldn’t be around anyone”. Mr. Robinson spoke of experiencing anxiety attacks and panic attacks. On one occasion when he went to his store a biker came to him and wanted to buy heroin indicating that he heard that Mr. Robinson used heroin. The plaintiff testified that he told the biker that he did not use or sell heroin and indicated that “I don’t know where he got that information that I used heroin.”

[16] It was the evidence of the plaintiff that his business suffered financially after the Facebook messages posted by the defendant. The plaintiff has maintained a record of sales for the Smoke Shack since July 2019, and they go to the present date. The summaries for these sales reports from July 2019 to June 2023 were entered collectively as Exhibit 6. These sales records indicate that in the summer of 2020, net sales were roughly $230,000 for July and August, and $219,933.80 for September 2020. There was a drop to $194,436.63 in October 2020, and a steady decline from November 2020 to and including March 2021. It appears from the records that sales have not reached the $200,000 monthly mark since the Facebook posts were made by the defendant. These decline in sales are consistent with the plaintiff’s observation of a decline in traffic in the store.

[17] As a result of the Facebook entries posted by the defendant, the plaintiff has attended men’s group counselling and has felt traumatized. He described to the court the experience being “pretty awful actually”. The whole experience has been numbing to the plaintiff who has had difficulty dating and indicated in his evidence that he “has no desire to be in an intimate relationship with a woman”.

Witness Testimony

[18] A daughter of the plaintiff, Jenna Barry, provided evidence to the court. Her overall depiction of her father was in stark contrast to how he is described in the Facebook entries generated by the defendant. She described the home life that her father provided to her as “loving and stable”. She described Frederick Robinson as a “very involved” father who was always there for her. Ms. Barry testified that there was no alcohol or drugs in her father’s home and that she never saw any domestic violence in the home. Ms. Barry described activities that she did with her father, such as camping, snow machining, and ice fishing. Jenna Barry described her father as a “very well liked and respected person in the community”. She cannot believe the things that were being said about her father. Ms. Barry testified that she was asked a couple of times about the Facebook posts and that “the people who really know my dad know it’s not true”. Ms. Barry described her father as being “very sad” by the posts and testified that “he was definitely very hurt by it.”

[19] Jenna Barry testified that Nakina came into her care in March 2022 and was back with the defendant in October 2022. Ms. Barry testified that while Nakina was in her care that the plaintiff saw her every day and that their relationship was a good one. Ms. Barry specifically indicated in her evidence that her father was not a drug dealer nor was he supportive of drug dealers. She testified that she never saw her father be abusive of anyone and that her father was financially and emotionally supportive of her. Ms. Barry testified that she had difficulty in her own marriage and that in those difficult times her father supported her financially as a single mother and was always there for her. Ms. Barry indicated in her evidence that “I don’t think I’d be here without him” and testified that her father’s reputation in the community was a good one. Jenna Barry described the posts on Facebook about her father as “unrecognizable” to her – that is not who her father is at all.

[20] Lorrie Barry testified. She is the former spouse of the plaintiff, Frederick Robinson. Ms. Barry testified that she dated Frederick Robinson for ten years and then married and remained married for 24 years. Ms. Barry parented two children with the plaintiff, namely, Jenna and Dalton. Mr. Robinson was described by Lorrie Barry as a hard worker, a supportive family member and a “loving husband”. Mr. Robinson is described as being financially generous to her and a good father to his children. It was Ms. Barry’s evidence that the plaintiff was an attentive parent and that “his reputation in the community as a father was excellent”. Ms. Barry indicated in her evidence that Frederick Robinson was not abusive, did not fight in his home, was not a drug dealer nor did he support drug dealers. Ms. Barry described the plaintiff as having a close relationship with his children and his grandchild.

[21] Lorrie Barry testified that she was aware of the Facebook posts in September and October 2020. She testified that she was “disgusted” by the posts. She described the posts as being untrue and not sounding anything like the plaintiff. Ms. Barry indicated in her evidence that she saw the plaintiff around the time the Facebook posts were made that he was “very upset” by the posts. In addition to seeing the Facebook posts herself, Ms. Barry heard from other people in the community that the Facebook posts existed. It was the evidence of Lorrie Barry that people in the community never really believed the Facebook posts and that people who knew the plaintiff his whole life would not have believed the Facebook posts of the defendant.

[22] Lee Ann Gamble is the sister of Lorrie Barry, the former wife of the plaintiff. The plaintiff has been in her life since she was eight years of age. Ms. Gamble describes the plaintiff as a good man and a good father. She describes herself as being happy when the plaintiff married her sister. Ms. Gamble describes Frederick Robinson as a good father and as “a respected man in the community”. The plaintiff was not involved in drugs. Ms. Gamble never witnessed the plaintiff to be abusive or someone with a propensity to fight. Ms. Gamble observed the plaintiff to be a good father to his daughter Nakina, just as he was a good father to Jenna and Dalton. The plaintiff is the godfather to Ms. Gamble’s son. Ms. Gamble has no concerns with the plaintiff being around her two children.

[23] Lee Ann Gamble testified that she saw the two Facebook posts of the defendant in the fall of 2020. Ms. Gamble’s first reaction was that the defendant was lying. As she put it in her evidence, “it was mind-blowing that those allegations were made”. Ms. Gamble indicated in her evidence that no one in the community ever spoke to her about the Facebook posts. Ms. Gamble testified that the Effin Jae’s Smoke Shack followers were approximately two thousand in number at the time of the Facebook posts by the defendant, but that the number of followers dropped after the posts were put on Facebook.

Analysis: Defamation

[24] As to the question of whether the plaintiff has been defamed by the defendant, in my view, the legal test has been met and defamation has been established. In Grant v. Torstar Corp., 2009 SCC 61, the Supreme Court of Canada has set out the test for defamation as follows,

A plaintiff in a defamation action is required to prove three things to obtain judgment and an award of damages:

(1) That the impugned words were defamatory in the sense they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person;

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

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

(Grant v. Torstar Corp., supra, at para. 28)

[25] In the case at bar, I am satisfied that each of the three aforementioned elements have been satisfied. The words on Facebook, referring to the plaintiff as being addicted to drugs, supplying drug traffickers, neglecting his family and being abusive undoubtedly would lower the plaintiff’s reputation in the community. There is no doubt from the words used, the tenor and tone of the words used and the context in which the words were used that the defendant was referring to the plaintiff in the Facebook messages that she posted on September 30, 2020 and October 3, 2020 on the Effin Jae’s Smoke Shack Facebook page, the Facebook page for the very business that the plaintiff owned and operated. The evidence satisfies me that the words were published. The Facebook replies to the September 30, 2020 and October 3, 2020 Facebook posts indicate that numerous people had seen the Facebook posts of the defendant. These responses were, for the most part, negative toward the plaintiff and supportive of the defendant. Furthermore, Lorrie Barry testified that she heard from people in the community that read the Facebook posts published by the defendant. Jenna Barry gave similar evidence. Undoubtedly, the Facebook posts were communicated to a large number of people, as the Effin Jae’s Smoke Shack had over two thousand followers on its Facebook account.

[26] There is no evidence from the defendant or no suggestion that the evidence called by the plaintiff should not be accepted or relied upon by the court. For the aforementioned reasons, the court is satisfied that the action of defamation has been made out by the plaintiff against the defendant. The plaintiff has been defamed.

Analysis: Damages

[27] As to damages, the Supreme Court of Canada in Grant v. Torstar Corp. explains that defamation is a tort of strict liability. The plaintiff is not required to show that the defendant intended to do harm, or even that the defendant was careless.

[28] The presence of damages is established by the finding that there was defamation. General damages are presumed once the tort has been established. No proof of actual injury by the plaintiff is required. In defamation, damages reflect what the law presumes to be the natural or probable consequence of the defendant’s conduct and the harm which normally results from the tort.

[29] In Barrick Gold Corp. v. Lopehandia, [2004] O.J. No. 2329, referencing Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130, the Ontario Court of Appeal provides useful instructions on the factors that a court should consider in assessing damages for defamation. The court notes that the factors to consider in determining damages for defamation as summarized in Hill v. Church of Scientology are as follows,

(1) The plaintiff’s position and standing;

(2) The nature and seriousness of the defamatory statements;

(3) The mode and extent of publication;

(4) The absence or refusal of any retraction or apology;

(5) The whole conduct and nature of the defendant from publication through judgment; and

(6) Any evidence of aggravating and mitigating circumstances.

[30] The communications in question were posted on Facebook. This type of communication allows defamatory statements to be distributed broadly. In the case at bar, there were over two thousand Facebook followers and undoubtedly the statements made by the defendant received a large audience. This is a factor to be considered. The defendant did not defend this action. She has made no retraction or apology. Furthermore, it is difficult not to believe that the defendant was using the Facebook posts to tarnish the reputation of the plaintiff to gain some advantage in the family law proceeding which followed the Facebook messages. In mitigation, the Facebook posts were limited to two and were close in time, one being on September 30, 2020, and one being on October 3, 2020.

[31] Balancing the factors set out in Barrick Gold Corp. and Hill, I assess the general damages of the plaintiff at $50,000. As to aggravated damages, the Supreme Court of Canada in Hill v. Church of Scientology of Toronto provides useful instruction to the court in paragraphs 188 to 190 inclusive as follows,

Aggravated damages may be awarded in circumstances where the defendants' conduct has been particularly high‑handed or oppressive, thereby increasing the plaintiff's humiliation and anxiety arising from the libellous statement. The nature of these damages was aptly described by Robins J.A. in Walker v. CFTO Ltd., supra, in these words at p. 111:

Where the defendant is guilty of insulting, high‑handed, spiteful, malicious or oppressive conduct which increases the mental distress ‑‑ the humiliation, indignation, anxiety, grief, fear and the like ‑‑ suffered by the plaintiff as a result of being defamed, the plaintiff may be entitled to what has come to be known as "aggravated damages".

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 by the jury 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.

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. See, for example, Walker v. CFTO Ltd., supra, at p. 111; Vogel, supra, at p. 178; Kerr v. Conlogue (1992), 65 B.C.L.R. (2d) 70 (S.C.), at p. 93; and Cassell & Co. v. Broome, supra, at pp. 825‑26. 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 Taylor v. Despard, supra, at p. 975.

[32] On the facts of this case, I find that the actions of the conduct were high-handed and oppressive in that they were designed to paint the plaintiff in an unfavourable position post separation to obviously attempt to gain an advantage in the family law proceedings involving the parties, and to damage the relationship that the plaintiff has with his daughter, Nakina. This portrayal of the plaintiff as a neglectful father, in the face of the evidence as to what type of father the plaintiff actually is, undoubtedly increased the plaintiff’s anxiety and mental distress resulting from the Facebook posts and the plaintiff’s overall suffering.

[33] I assess aggravated damages at $25,000.

[34] The actions of the defendant are not so malicious or offensive that an award of punitive damages should be made by the court. In my view, the damages awarded for general and aggravated damages sufficiently reflect the harm done to the plaintiff by the defendant.

[35] Accordingly, there will be a judgment that the defendant shall pay general damages to the plaintiff in the total amount of $50,000 and that the defendant shall pay aggravated damages to the plaintiff in the amount of $25,000.

Injunctive Relief

[36] On the evidence before me, I am not satisfied that there is a likelihood that the defendant will continue to defame the plaintiff by Facebook posts or otherwise. The court has no evidence that the defendant has defamed the plaintiff after October 3, 2020, which is now almost three years ago. The absence of recent defamatory statements by the defendant against the plaintiff, in my view, indicates that it is unlikely that further statements will be made. I am therefore not inclined to make any order for injunctive relief against the defendant.

Costs

[37] As to costs, plaintiff’s counsel has submitted a bill of costs dated July 5, 2023, in which the plaintiff seeks costs on a partial indemnity scale in the amount of $11,716.87. As indicated on the bill of costs, if substantial indemnity costs were sought those costs would total $16,850.85. The amount sought for partial indemnity costs are not unreasonable given the nature of the claim before the court and the process it took to have the matter concluded.

[38] Accordingly, costs are to be paid by the defendant to the plaintiff in the amount of $11,716.87 plus HST and disbursements of $1,042.10.

Gareau J. Released: July 24, 2023