Court File and Parties

NEWMARKET COURT FILE NO.: CV-21-00322-00 DATE: 20231127 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: Elio D’Alessio, Robert Romero and D’Alessio Romero Law Firm Professional Corporation c.o.b. D’Alessio Romero Law Firm Plaintiffs – and – Vicky Sadia Chowdhury Defendant

Counsel: Ahmed Mohamed, for the Plaintiffs Vicky Sadia Chowdhury, Self-Represented

HEARD: September 12, 2023, via video conference

Ruling on Summary Judgment Motion

Sutherland J.:

Introduction

[1] The plaintiffs bring a summary judgment motion (SJM) seeking damages for alleged defamation of them by the defendant. The plaintiffs allege that due to the defendant’s false, malicious and defamatory statements posted online, their reputation has suffered and consequently, they are deserving of damages.

[2] The defendant denies that the statements made online were false, malicious or defamatory. The defendant indicates she was just expressing her “truth” and “experience” on the quality of the representation she received from the plaintiffs. If the statements were malicious or defamatory, she has removed the statements online and apologizes to the plaintiffs.

[3] For the reasons to follow, I determine that the defendant defamed the plaintiffs and shall pay damages to the plaintiffs.

Brief Factual Background

[4] The plaintiffs were previous counsel for the defendant.

[5] Around August 5, 2016, the plaintiffs commenced acting for the defendant on a motor vehicle accident file which included a tort claim and an accident benefits claim.

[6] Around November 10, 2020, a fundamental break down of the solicitor-client relationship occurred, and the defendant obtained new counsel and her files were transferred to that new counsel.

[7] On or about January 14, 2021, the defendant posted online a Google Review on the plaintiffs’ online Your Business Google Account stating, among other things:

If you want an incompetent lawyer and paralegal posing as a lawyer handling your case then feel free to use this firm… They were highly negligent with my cases…. Thankfully, I moved to another firm. This firm refuses to transfer our files, deliberately causing delays and wont even let us review their nonsense billing. They are highly unprofessional and disorganized. They are not trustworthy and if my file is not sent to my new lawyer asap, I will contact the law society…. Elio is a joke, 3 years ago he got me a measly offer of less than 30k and asked me 3 years later if he should try and see if that offer is still on the table, pathetic. Rob is even worse… If your firm was even a little bit organized it would not take over two months to send a file……You are shady, pathetic and awful lawyer.

[8] On January 15, 2021, the plaintiffs responded to the post. The plaintiffs posted, among other things:

We hereby respond to your deliberate, unfair and inaccurate, indecent, non-privileged and unlawful post (broadcasting) that you made in bad faith and is tantamount to gross negligence.

The facts which you allege are malicious and false, all of which amounts to published defamatory words that defamed our reputation constituting libel for which you are completely liable under Ontario Law.

The law firm will vigorously prosecute a $3,000,000 libel law suit against you within the next 3 months and expedite the litigation to obtain an early and substantial award for losses and damages.

To assist in mitigating our losses and damages, we urge you to retain counsel to defend you.

[9] The response goes on to list acknowledgments that the plaintiffs demand from the defendant. The response concludes:

We hereby put you on Notice pursuant to section 5(1) of the Libel and Slander Act, R.S.O. 1990, c. L.12 to correct or retract your post and further post a full apology prior to 5:00 pm on Monday January 25, 2021. If you comply, we will cancel the law suit against you.

[10] On January 16, 2021, the defendant responded refusing to take down the review and claimed that truth is an absolute defence to a defamation lawsuit and that: “No one is punished for speaking the truth, even if it is an ugly truth.”

[11] On January 25, 2021, the plaintiffs commenced this action.

[12] On April 12, 2021, the defendant filed her Statement of Defence.

[13] On April 12, 2021, the defendant removed the review. The review remained posted for just under three months.

[14] On July 15, 2021, the defendant was examined for discovery by the plaintiffs.

[15] The defendant filed a document which she put forth as her responding affidavit to the SJM. The document is not in affidavit form and is not signed or commissioned.

[16] Both parties have filed a factum.

Legal Principles of Summary Judgment

[17] Pursuant to r. 20.01 of the Rules of Civil Procedure (the Rules), after the close of pleadings, the Court must grant summary judgment if it is satisfied there is no genuine issue requiring a trial.

[18] There will be no genuine issue requiring a trial when a Court is able to reach a fair and just determination on the merits. A fair and just determination on the merits is achieved when:

(a) The process allows the judge to make necessary findings of fact;

(b) The process allows the judge to apply the law to the facts; and,

(c) It is a proportionate and more expeditious and less expensive means to achieve a just result. Hryniak v. Mauldin, 2014 SCC 7, at para. 49.

[19] On a motion for summary judgment, the Court must first determine if there is a genuine issue requiring a trial based on the evidence given on the motion. If there appears to be a genuine issue requiring a trial, the Court would then determine if the need for a trial can be avoided using the powers under r. 20.04 (2.1) of the Rules weighing the evidence, evaluating the credibility of the deponents, and drawing any reasonable inference from the evidence unless it is in the interest of justice for these powers to be exercised only at a trial. These powers are presumptively available to the judge to give effect to the goals of timeliness, affordability, and proportionality in review of the litigation. Hryniak v. Mauldin, 2014 SCC 7, at para. 65; and Canaccord Genuity Corp. v. Pilot, 2015 ONCA 716, at para. 31.

[20] In contrast, the responding party must put their “best foot forward” or risk summary judgment being awarded against them. Mazza v. Ornge Corporate Services Inc., 2016 ONCA 753, at para. 9; Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200, at para. 32, aff’d 2014 ONCA 878. The responding party bears the evidentiary burden to present affidavit material or other evidence to support the allegations or denials in their pleading for the Court is entitled to assume that both parties have put before the Court all the evidence each intends to rely upon. 1061590 Ontario Ltd. v. Ontario Jockey Club (1995), 21 O.R. (3d) 547 (C.A.), at p. 557; 2313103 Ontario Inc. v. JM Food Services Ltd. et al, 2015 ONSC 4029, at para. 40. Absent this evidence, an adverse inference can be drawn. Vincorp Financial Ltd. et al. v. Hope’s Holdings Inc., 2010 ONSC 6819, at para. 17; Parris v. Laidley, 2012 ONCA 755, at para. 2.

Analysis

[21] Summary judgment is available on defamation actions. Hategan v. Frederiksen, 2022 ONCA 217; Vivo Canadian Inc. v. Geo TV, 2021 ONSC 3401, at para. 11.

[22] Based on the material filed which included the affidavits and the transcripts of the examination for discovery of the defendant, I am confident that I am able to come to a fair and just determination of the issues. The parties agreed that the written statement of the defendant I can utilize as if it was a commissioned affidavit. The transcripts of the defendant’s examination elaborate on the contents of the defendant’s written statement.

[23] The alleged defamatory Google Review has also been produced.

[24] Thus, I have adequate evidence to determine whether the statements made by the defendant were defamatory and whether the plaintiffs are entitled to damages.

[25] I will turn to the law of defamation.

Legal Principles of Defamation

[26] The Supreme Court of Canada in Grant v. Torstar, 2009 SCC 61, set out a three-part test to establish defamation:

a. The words must refer to the plaintiff;

b. The impugned words were published; and

c. 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. Grant v. Torstar, 2009 SCC 61, at paras. 28-29.

[27] Once the three-part test is satisfied on the balance of probabilities, falsity and damages are presumed and the onus shifts to the defendant to advance a defence in order to not be found liable. Lavalee et al v. Isak, 2021 ONSC 6661, [2021] O.J. No. 5125, at para. 20. The plaintiff need not prove actual loss or injury. Lavalee et al v. Isak, 2021 ONSC 6661; Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130, at para. 164; Henderson v. Pearlman, at para. 56.

[28] I will turn to determining if the plaintiffs have satisfied the three-part test and if so, has the defendant advanced and qualified for any of the defences. If not, then I will assess damages.

The Three-Part Test

[29] There is no issue that the words were that of the defendant and the words refer to the plaintiffs.

[30] Also, there was no issue that the impugned words were published by the defendant on the internet, via Google Review.

[31] The issue is whether the impugned words were defamatory.

[32] The plaintiffs argue that the impugned words were defamatory in the sense that the words lowered the reputation of the plaintiffs in the eyes of a reasonable person. The plaintiffs contend that the words that the plaintiffs were “highly incompetent”, “untrustworthy”, “highly unprofessional”, “shady”, “pathetic”, “a joke” and “awful lawyer” were defamatory.

[33] I agree. The words used were used to impugn the reputation of the plaintiffs as competent, trustworthy lawyers that know how to practice law in the realm of personal injury. In that sense, the impugned words in the eyes of a reasonable person would conclude that the plaintiffs were lawyers that one should not use and in so doing, the impugned words lowered the professional reputation of the plaintiffs.

Defences

[34] The defendant is obligated to clearly and concisely advance any defences she may wish to utilize to defeat the claim of defamation against her.

[35] I have carefully reviewed the Statement of Defence and find that the defendant has not plead or advanced any defence. The defendant has claimed that the action is an abuse of process. The defendant has not “broadcasted any false or malicious or indecent statement to intentionally cause damages.” The defendant also plead that the plaintiffs have not suffered any damages as alleged and that the plaintiffs have failed to mitigate their losses and damages.

[36] From the Statement of Defence, the defendant has not advanced any defence pertinent to defamation.

[37] In oral argument, the defendant argued for the applicability of the anti-SLAPP provisions in section 137.1 of the Courts of Justice Act.

[38] However, section 137.1 indicates that on a motion a judge may “dismiss the proceeding against the person if the person satisfies the judge that the proceeding arises from an expression made by the person that relates to a matter of public interest.”

[39] The defendant conceded in oral argument that she did not bring such a motion. The defendant has not provided the necessary support in affidavit material on a motion per section 137.1. I am cognizant that the defendant is self represented. However, the simple fact that the defendant is self represented does not relieve her of her obligation to follow proper procedures and provide the Court with the necessary evidence. The Alberta Court of Appeal in Malton v. Attia, 2016 ABCA 130, at paras. 21, 32, 39 and 41. Fairness dictates that all parties must follow the same procedures and have notice of the case and argument one must face.

[40] This is reiterated by the Ontario Court of Appeal in Grand River Conservation Authority v. Ramdas, 2021 ONCA 815 at para. 21 where the Court stated:

...the principle of impartiality constrains a judge’s obligation to help make the judicial process accessible to self-represented parties. A judge must not cross the line between assisting self represented litigants in the presentation of their evidence and becoming their advocate.

[41] Accordingly, I will not entertain the argument of the defendant that section 137.1 applies. The defendant has not complied with the requirement in the Rule of bringing a motion with supporting affidavit material.

[42] I conclude that the defendant has not plead or advanced any defences to the defamation claim of the plaintiffs.

[43] I will turn to assessment of damages.

Damages

[44] General damages in defamation serve three functions:

(a) To console the plaintiffs for the distress suffered from the publication of the defamation.

(b) To repair the harm done to the plaintiffs’ reputation and

(c) To vindicate the plaintiffs’ reputation. Lavalee v. Isak, 2021 ONSC 6661, supra note 9, at para. 56.

[45] The amount assessed by the Court should be sufficiently meaningful to fulfill these purposes but should not be punitive. Zoutman v. Graham, 2019 ONSC 2834, [2019] O.J. No. 2398, at para. 116.

[46] The Ontario Court of Appeal decision in Barrick Gold Corp. v. Lopehadia, is frequently cited for the factors to be used in assessing general damages in defamation. These factors are effectively summarized in list form by R. Smith J., in Sustainable Development Technology Canada v Sigurdson, 2018 ONSC 7320, at para. 50:

(i) the plaintiff’s position and standing,

(ii) the nature and seriousness of the defamatory statements,

(iii) the mode and extent of publication,

(iv) the absence or refusal of any retraction or apology,

(v) the whole conduct and motive of the defendant from publication through to judgement, and

(vi) any evidence of aggravating or mitigating circumstances.

[47] In Barrick, the Court noted that the internet has a distinctive capacity to cause instant and irreparable damage to reputation. Barrick Gold Corp. v. Lopehadia, at para. 44. The Court also noted that repetition will normally increase damages. Barrick Gold Corp. v. Lopehadia, at para. 50.

[48] Subsequent to Barrick, Courts have provided more details to aid in applying the above factors. Assessments of the nature and seriousness of the defamatory statement might consider the tone, language, and degree to which the defendant has sensationalized the statement through language or presentation. Reichmann v. Berlin, at para. 8. Very limited circulation or publication, for example, a voicemail left on a business answering machine, can lead to a finding that there was limited or no material reputation harm. Bird v. Ontario, 2014 ONSC 2457, [2014] O.J. No. 3060, at para. 64. Broad spread through the community will have the opposite effect. May v. Guzzo, 2013 ONSC 3332, [2013] O.J. No. 2607. Allegations of criminal misconduct will weigh against the defendant. Sustainable Development Technology Canada v Sigurdson, 2018 ONSC 7320, at para. 21. The effects upon the plaintiff’s life and business are also relevant to the assessment. May v. Guzzo, 2013 ONSC 3332, supra note 22.

[49] In assessing the appropriate amount in damages, I have reviewed the following cases.

[50] Mirzadegan v. Mahdizadeh, 2022 ONSC 6082, [2022] O.J. No. 5418, is a decision where the defendants left over 60 negative online reviews of the plaintiff immigration consultant. Many reviews were cross posted to other websites and contained serious, inflammatory allegations and implied criminal misconduct. There was no retraction or apology and several websites declined to remove the postings absent a Court order. An award of $200,000 of general damages was granted.

[51] In Zoutman v. Graham, 2019 ONSC 2834, [2019] O.J. No. 2398, the plaintiff physician served as an expert witness in a wrongful death lawsuit launched by the defendant’s family after the death of his brother. The defendant’s family lost the wrongful death action (dismissed by the jury); the defendant then left ratings on two websites, offering negative reviews of the plaintiff physician despite never having been a patient. The defendant made 11 total negative reviews of the plaintiff, impugning his competence, character, trustworthiness, etc. The online reviews featured prominently on google search results. An award of $25,000 for general damages was granted.

[52] In Ironside v. Delarazzi Estate, 2014 ONSC 999, [2014] O.J. No. 768, the plaintiff and defendant were business partners. The defendant broke into the plaintiff’s premises, stole various items, then created at least one website labelling the plaintiff as incompetent, dishonest, and a scammer. This led to a decrease in business and eventual closure of the plaintiff’s operations. The breach of trust was relevant. The plaintiff developed depression and other psychological disorders. The websites remained active for seven years. There was no apology or retraction, until the plaintiff’s death. General damages of $50,000 were assessed.

[53] Mina Mar Group Inc. v. Devine, 2011 ONSC 1172, [2011] O.J. No. 785, involves defendants that made numerous postings over five years on various internet bulletin boards and investor websites defaming the plaintiff investor relations company as criminal, dishonest, and incompetent. There was a refusal to retract, and the business lost clients. An award of $50,000 in general damages was granted.

[54] Lastly, in Mumford v. Smith, [2009] O.J. No. 4317; aff’d 2010 ONCA 395, [2010] O.J. No. 2297, the plaintiff interior designer had been twice sued by a former client, lost, and paid both judgments. The former client subsequently posted on two websites, alleging the interior designer lacked integrity and did not pay the judgments against her. The former client then created their own website, again defaming the plaintiff in a similar manner. The plaintiff had an established reputation as an interior designer which was attacked by the postings, she had worked hard to please the former clients in question, the defamatory content was knowingly false, and existed for almost three months before being removed, and only then through the efforts of the plaintiff and her lawyers. There was no retraction or apology. General damages of $30,000 were awarded.

Conclusions

[55] The plaintiffs are lawyers. They have a reputation to uphold to continue to obtain work and clients. The defendant’s review included allegations of incompetence, untrustworthiness, that they were highly negligent, and shady. All these words were defamatory and directly assaulted the plaintiffs’ legal and business acumen and reputation. The review was public for just under three months. The defendant was given the opportunity to apologize at the time and take down the review and she refused to do so.

[56] The review was posted online in Google Reviews with a broad berth of viewers.

[57] The defendant indicated that she is a single mother and not employed. She is on some form of assistance.

[58] However, the defendant’s financial situation does not shield her from an appropriate damages award given her conduct and defamation. She was presented with the opportunity to apologize and take down the review, but she refused to do so. She apologized after the action was commenced. A clear message must be made that such form of comments on an internet platform do not insulate someone from legal repercussions, such as an award of damages. Online comments are easy to do and seem distant and not accountable. But they are not. The defendant is responsible for her conduct and the quantum of damages should not be reduced simply because she is financially disadvantaged. The defendant should have thought about her state before typing the content and sending the Google Review that she did.

[59] The statements in the Google Review were serious. The intent appears to me to diminish the plaintiffs’ reputation as a competent and effective personal injury lawyer. Though the defendant did eventually take down the review, it was after three months and after she was sued.

[60] I am satisfied that there is no genuine issue requiring a trial.

[61] The plaintiffs are seeking damages fixed at $30,000. Taking into consideration all the factors outlined, I assess the quantum in damages that the defendant should pay to the plaintiff is $20,000.

[62] The plaintiffs are seeking costs on a partial indemnity rate. The amount in fees in $12,222.50 plus HST and disbursements which the plaintiffs did not total. I find that a fair and reasonable amount for the defendant to pay to the plaintiffs in costs is $9,500 inclusive of HST and disbursements.

Disposition

[63] I grant judgment as follows:

(a) The defendant shall pay to the plaintiffs the sum of $20,000 in damages.

(b) The defendant shall pay costs in the amount of $9,500.

(c) The plaintiffs shall obtain prejudgment interest at the rate of 0.5% from the date of the commencement of the Statement of Claim to the date of this decision.

Justice P.W. Sutherland Released: November 27, 2023