COURT FILE NO.: CV-22-00676197-0000

DATE: 20241213

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Ejjaz Alli

AND:

Yasir Shakur and Saiyaf Alli

BEFORE: J.T. Akbarali J.

COUNSEL: Oleg M. Roslak, for the plaintiff

Rohan Haté, for the defendants

HEARD: November 15, and December 11, 2024

CORRECTED ENDORSEMENT

Overview

[1] The defendants move for summary judgment in this defamation action, alleging that there is no genuine issue requiring a trial on the question of whether the alleged defamatory statements were made.

Brief Background

[2] The plaintiff is the uncle of the defendants, who are his nephews, and are first cousins of one another. Because two of the parties share the same last name, I refer to the plaintiff as “the plaintiff” in these reasons. I refer to the defendants as Mr. Alli and Dr. Shakur.

[3] The statement of claim pleads four categories of defamatory statements: (i) an alleged statement in 2013 whereby Dr. Shakur is alleged to have called the plaintiff a rapist; (ii) an alleged text message sent by Dr. Shakur to Mr. Alli in which Dr. Shakur is alleged to have communicated that the plaintiff had raped a member of their family; (iii) an alleged statement by Mr. Alli to the plaintiff’s sister, Bibi Nazeeman Mohamed (“Bibi Mohamed”) repeating the alleged text message; and (iv) “other false and defamatory statements” which Dr. Shakur and/or Mr. Alli are alleged to have made to other members of the plaintiff’s family and the community at large accusing the plaintiff of sexually assaulting various individuals, including members of the plaintiff’s family.

[4] The plaintiff has now narrowed his allegations. He is not pursuing his claim for the alleged 2013 statement, nor the alleged “other false and defamatory statements.” This claim thus concentrates on: (i) whether Dr. Shakur defamed the plaintiff in a text sent to Mr. Alli; and (ii) whether Mr. Alli defamed the plaintiff by repeating the contents of the alleged text to Bibi Mohamed in a telephone call.

[5] At the same time as the plaintiff commenced this action, he commenced a second action against Mr. Alli and Mr. Alli’s mother, who is also the plaintiff’s sister-in-law, Bibi Nesha Rahamatun Alli (“Mrs. Alli”), also in defamation (the “second action”). In the second action, he claims that Mrs. Alli made false and defamatory statements about him on August 1, 2021, to the effect that he had sexually assaulted her on two occasions. He alleges these statements were made to persons including Mr. Alli, the plaintiff’s siblings, including his brother and Mrs. Alli’s husband, Ashraf Alli (who I refer to by his full name in these reasons), and other members of the plaintiff’s family.

[6] In the second action, he also alleges that either Mrs. Alli or Mr. Alli sent a false and defamatory email to the plaintiff’s siblings from Ashraf Alli’s email account accusing the plaintiff of sexually assaulting Mrs. Alli once, and attempting to do so on other occasions.

[7] The plaintiff further pleads that Mrs. Alli and/or Mr. Alli have made other false and defamatory statements about him to other individuals, including other members of the plaintiff’s family and the community at large, accusing him of sexually assaulting others, including other members of his family.

[8] At this juncture, I note that the evidence is that, on August 1, 2021, Ashraf Alli was ill with brain cancer, and was having difficulty communicating due to throat problems he was having as a result of chemotherapy and medication. On that day, his wife, Mrs. Alli, told him that she had been sexually assaulted by his brother, the plaintiff, in the past. The evidence indicates that Ashraf Alli told some of his siblings (who are also the plaintiff’s siblings) what his wife had said. At this point in time, Ashraf Alli’s condition was making his communication difficult, so some of what he conveyed was done through Mr. Alli, who was asked to speak on the phone with Mrs. Mohamed and convey to her what Ashraf Alli was saying about the plaintiff.

[9] Mrs. Alli and Mr. Alli defended the second action. Mrs. Alli also counterclaimed against the plaintiff for damages arising out of the plaintiff’s alleged sexual assault of Mrs. Alli. In his reply pleading, the plaintiff admits having a sexual relationship with Mrs. Alli, but alleges it was consensual.

[10] The defendants in this action move for summary judgment on a relatively narrow point. They argue that there is no genuine issue requiring a trial regarding the question of whether the alleged defamatory text was sent, or repeated. They argue that the evidence allows me to conclude that the statements were never made. As a result, they seek a summary dismissal of the claim.

Issues

[11] This motion raises the following issues for determination:

a. Is summary judgment appropriate in this case?

b. If so,

i. Is there a genuine issue requiring a trial with respect to the question of whether Dr. Shakur sent the allegedly defamatory text to Mr. Alli?

ii. Is there a genuine issue requiring a trial with respect to the question of whether Mr. Alli repeated the allegedly defamatory text to Mrs. Mohamed?

[12] The defendants also raised the question of whether there was a genuine issue requiring a trial on the issue of whether the plaintiff suffered any damages. I have not considered this issue in any detail. In Park Lawn Corporation v. Kahu Capital Partners Ltd., 2023 ONCA 129, at para. 47, the Court of Appeal, quoting from Bent v. Platnik, 2020 SCC 23, at para. 144, held that general damages are presumed in defamation actions. Accordingly, the lack of evidence of actual harm suffered by the plaintiff does not justify a summary dismissal of the claim.

When is summary judgment appropriate?

[13] In Hyrniak v. Mauldin, 2014 SCC 7, the Supreme Court of Canada heralded a culture shift in civil litigation to create an environment promoting timely and affordable access to the civil justice system: Hyrniak, at para. 2.

[14] It concluded that summary judgment is appropriate when there is no genuine issue requiring trial, which will be the case “when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment.” To reach a fair and just determination on the merits, the process must: (i) allow the judge to make the necessary findings of fact; (ii) allow the judge to apply the law to the facts; and (iii) be a proportionate, more expeditious and less expensive means to achieve a just result: Hyrniak, at para. 49.

[15] The Court noted that r. 20.02(2.2) of the Rules of Civil Procedure, R.R.O. Reg. 194, gives the motion judge the power to hear oral evidence to assist her in making findings under r. 20.02(2.1), which include weighing the evidence, evaluating the credibility of a deponent, and drawing any reasonable inference from the evidence. It held that the power to hear oral evidence should be employed when it allows the judge to reach a fair and just adjudication on the merits and it is the proportionate course of action. The Court noted this is more likely to be the case when the oral evidence required is limited: Hryniak, at para. 63.

[16] At paragraph 62 of Hryniak, the Court endorsed the guidelines that had been articulated by the Court of Appeal; the power to hear oral evidence should be exercised when:

a. oral evidence can be obtained from a small number of witnesses and gathered in a manageable period of time;

b. any issue to be dealt with by presenting oral evidence is likely to have a significant impact on whether the summary judgment motion is granted; and

c. any such issue is narrow and discrete.

[17] The Court described the approach to a motion for summary judgment, concluding that the judge should first determine if there is a genuine issue requiring a trial based on the only evidence before her, without using the new fact-finding powers in r. 20.02. If it appears that there is a genuine issue requiring a trial, the motion judge should determine if the need for a trial can be avoided by using the powers in r. 20.02 (2.1) and (2.2). The judge may exercise her discretion to use those powers provided their use is not against the interests of justice. The use of the powers in r. 20.02(2.1) and (2.2) will not be against the interest of justice “if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole”: Hryniak, at para. 66.

[18] On a summary judgment motion, the judge is entitled to assume that each party has put their best foot forward, and there is no additional evidence that will be adduced at trial that has not been adduced on the motion: Mazza v. Ornge Corporate Services Inc., 2016 ONCA 753, at para. 9; Broadgrain Commodities Inc. v. Continental Casualty Company, 2018 ONCA 438, at para. 7.

[19] In this case, before the motion was returned before me, I read the entirety of the record, including the entirety of each transcript of cross-examination that was filed. I heard counsel’s arguments on why summary judgment was, or was not, appropriate.

[20] As I describe in greater detail in my analysis below, in his evidence, Dr. Shakur denies sending Mr. Alli a text in which he called the plaintiff a rapist. Mr. Alli denies receiving such a text from Dr. Shakur. No text has been produced. No person deposes to ever having seen such a text.

[21] Mr. Alli denies telling Mrs. Mohamed that he had received a text from Dr. Shakur in which Dr. Shakur called the plaintiff a rapist. Mrs. Mohamed states that he did tell her he had received such a text. Mrs. Mohamed never saw any such text message.

[22] Mr. Alli gave evidence about a telephone call with Mrs. Mohamed, which I reference briefly above. This call occurred when his father, Ashraf Alli, who was then ill with brain cancer and had difficulty communicating, had just learned from his wife, Mrs. Alli, that the plaintiff had allegedly sexually assaulted her. Mr. Alli says his father asked him to communicate what he was saying to Mrs. Mohamed over the phone, and that during this call, Ashraf Alli said something about a text message, but it had nothing to do with Dr. Shakur or Mr. Alli; he did not know what it was about.

[23] Mrs. Mohamed gave evidence that there was a phone call between her and Mr. Alli on August 1, 2021, right after Ashraf Alli learned of Mrs. Alli’s allegations of sexual assault. She testified that there was a second call between her and Mr. Alli on August 3, 2021, when she states Mr. Alli told her about the text message.

[24] At the end of the hearing, I concluded that I could not determine the summary judgment motion without using the fact-finding powers in r. 20.04(2.1) and (2.2). I concluded there was a limited credibility contest between Mr. Alli and Mrs. Mohamed about whether there had been any discussion between them about the alleged text message from Dr. Shakur to Mr. Alli. I concluded that the need for a trial could well be avoided by hearing oral evidence from those two witnesses on that discrete issue, and that the evidence on the issue could have significant impact on whether the summary judgment motion is granted. I was able to return the parties for a hearing at which the evidence could be led within less than a month.

[25] Accordingly, I advised the parties that I would exercise my discretion to hear oral evidence from Mr. Alli and Mrs. Mohamad about the telephone conversation(s) they may have had between August 1, 2023 and August 3, 2023, during which time Mrs. Mohamad alleges, and Mr. Alli denies, that Mr. Alli repeated the content of the alleged text message sent to Mr. Alli by Dr. Shakur.

[26] I heard that evidence on December 11, 2024. Having heard the evidence, I am in a position to exercise the expanded fact-finding powers in r. 20.04(2.1) to make determinations of credibility.

Brief Conclusion

[27] I am of the view that the defendants have proven that summary judgment is appropriate in this case. There is no genuine issue requiring a trial. The defendants have proven that no text message exists, and that no discussion between Mr. Alli and Ms. Mohamed occurred about the alleged text message.

[28] Below, I explain why I reach this conclusion on the evidence. First, I address the plaintiff’s argument that summary judgment is not appropriate due to the overlap in the issues between this action and the second action.

Impact of the Second Action on the Availability of Summary Judgment

[29] The plaintiff argued that the issues in this action overlap substantially with the issues in the second action, such that summary judgment in this action would be, in effect, partial summary judgment, and risk inconsistent findings of fact and inefficient use of judicial resources, given that the second action is continuing.

[30] I reject this argument.

[31] First, the plaintiff (through previous counsel) commenced two separate actions involving one common defendant arising out of different alleged defamatory statements[^1] in which he claims he was called a rapist. He had the option of commencing a single action, but he deliberately chose not to.

[32] Second, on September 12, 2023, I ordered a timetable in this action to bring this motion to a hearing. It has now been well over a year, and the plaintiff has not moved to consolidate the two actions or take any steps to have them heard together. While the plaintiff indicated in oral argument that it was obvious such a step would be taken, I am left wondering why, if it is so obvious, it has not already been done.

[33] The plaintiff chose to commence two actions. He chose to defend this motion having taken no steps to consolidate the two actions. He cannot rely on his own choices to claim summary judgment is not appropriate in this case. The plaintiff has to live with his choices. The impact, if any, of any findings I make in these reasons on the second action will be a matter to be sorted out in that action.

[34] I now turn to consider whether there is a genuine issue requiring a trial with respect to the existence of (i) the alleged text message, or (ii) the alleged repetition of the alleged text message.

The Text Message

[35] The plaintiff alleges in his statement of claim that Dr. Shakur sent Mr. Alli a text message in May or June of 2019 in which he claimed that the plaintiff had sexually assaulted a member of his own family.

[36] The defendants served a demand for particulars, in which the plaintiff was asked to identify particulars of the text message and to whom it was sent. The plaintiff’s response indicated that the “particulars of the text message are within the knowledge of the defendants and not of the plaintiff. The text message was repeated to [Mrs. Mohamed].”

[37] Dr. Shakur denies sending such a text message.

[38] Mr. Alli denies receiving such a text message.

[39] Mr. Alli gave evidence that between May 2019 and August 2021, he did not recall any texts from Dr. Shakur. He said that there may have been a text message along the lines of “how’s the family,” in that period of time, because they had “kind of rekindled [their] relationship” around then, but that they were not very close. They had not had a relationship in 10 years, and had texted perhaps no more than five times during the period in question. The text messages started when Ashraf Alli was diagnosed with cancer, and Dr. Shakur reached out to say he was sorry to hear about the news.

[40] Dr. Shakur’s evidence about his communication with Mr. Alli was broadly consistent. He said that from 2013 to 2020, when his grandfather died, he did not text with Mr. Alli at all. After 2020, his text messages with Mr. Alli were “sporadic.” He described them as “condolences when the grandfather passed away. Birthday invitations occasionally.”

[41] In answers to undertakings, Dr. Shakur and Mr. Alli each confirmed they have no text messages between themselves for a period from 2020 to August 2021.

[42] The plaintiff has never seen the alleged text message. Although the plaintiff pleads the alleged text message was sent in May or June 2019, during his cross-examination, he insisted that the alleged text message was sent after he sent a What’s App message to a family group that was formed to discuss prayers for a recently-deceased family member on June 23, 2020. In the What’s App chat, the plaintiff writes (errors in original):

Salaam all. Please do reply to this group .. we will praying every evening at my mom place after magrib physically until I we finish the Quaran ..I will send a full update tomorrow about the Shakur family.. I just spoke to one of the ex Daughter in law and she told me that she left the doctor she is happiest person ..and also her brother..you will hear more form me soon.. Thanks.

[43] The reference to “the doctor” is a reference to Dr. Shakur. The reference to the Shakur family, and Dr. Shakur’s former spouse appears to be out of place in the group chat. According to the plaintiff, Dr. Shakur was angry about the comment in the group chat and it was after reading it that he sent the alleged text to Mr. Alli. There is absolutely no evidence to support this theory which, as I have noted, is inconsistent with the plaintiff’s pleading.

[44] The only evidence that the text message exists comes from Mrs. Mohamed, who deposes that on August 3, 2021, Mr. Alli told her during a phone conversation that he had received a text message from Dr. Shakur which stated that the plaintiff had raped some member of the family, and that he said he had received the text message two years earlier, before the What’s App message. She then telephoned the plaintiff and told her what Mr. Alli had said about the text message. She has never seen the text message.

[45] To the extent that the plaintiff seeks to rely on Mrs. Mohamed’s evidence that Dr. Shakur sent a text message to Mr. Alli calling the plaintiff a rapist, it is hearsay. It is inadmissible for proof of the truth of its contents unless an exception to the hearsay rule applies.

[46] The plaintiff argued at the hearing that hearsay was admissible in the discretion of the court. That is not the test to admit hearsay. I asked the plaintiff to address the necessity and reliability of the statement. The argument boiled down to this: Mrs. Mohamed’s evidence is necessary because the defendants are not telling the truth. And the defendants are not reliable witnesses on the topic of the text, except, apparently, Mr. Alli at the time he first allegedly disclosed the text to Mrs. Mohamed.

[47] The hearsay evidence of Mrs. Mohamed is not necessary. The alleged sender and alleged receiver of the text have given evidence, including on cross-examination, that the text was neither sent nor received. They have searched their phones and confirmed they have no such text message. Hearsay is not an alternative proof strategy for a plaintiff who cannot find other evidence despite the actual and best sources of evidence being available.

[48] There is no admissible evidence before me to prove the existence of a text message in which the plaintiff is called a rapist. However, there is evidence, from Mr. Alli, Dr. Shakur, and the search of their telephones, that no such text was ever sent or received. I find that no text was sent by Dr. Shakur to Mr. Alli in which Dr. Shakur called the plaintiff a rapist. The action against Dr. Shakur is thus dismissed.

The Alleged Repetition of the Text Message

[49] Even though there was never any text, it is possible that Mr. Alli could have made a defamatory statement about the plaintiff to Mrs. Mohamed if he told her about a (non-existent) text message in which the plaintiff was called a rapist. I must thus consider whether the allegation that Mr. Alli made a defamatory statement by telling Ms. Mohamed about the alleged text raises a genuine issue requiring a trial.

[50] In oral cross-examinations, both Mrs. Mohamed and Mr. Alli gave evidence that was inconsistent with their prior evidence, but in minor ways that reflect the frailty of human memory rather than any serious credibility or reliability concerns.

[51] However, the transcript of Mrs. Mohamed’s cross-examination raises serious concerns about her objectivity as a witness. While certain that Mr. Alli had told her about the alleged text message, and equally certain that the plaintiff had not sexually assaulted Mrs. Alli, Mrs. Mohamed was much more circumspect about problematic conduct the plaintiff had clearly engaged in.

[52] For example, when asked about his allegedly consensual sexual relations with Mrs. Alli, Mrs. Mohamed first suggested she did not know when the plaintiff had had sex with Mrs. Alli, but perhaps it was before her marriage to Ashraf Alli. When reminded that the plaintiff’s own pleading admits that the sexual relations took place during the marriage of Mrs. Alli and Ashraf Alli, she raised questions about who initiated the relations. Then, when asked if she believed that the plaintiff had consensual sexual relations with Mrs. Alli, Mrs. Mohamed said “That, I can’t say. I’d have to know more about it.”

[53] Then, when asked about the timing of the alleged text message, and the plaintiff’s What’s App message about the “Shakur family,” and the happy ex-wife of “the doctor,” she acknowledged she was part of the What’s App group chat. When shown the message from the plaintiff, she testified she was not sure whether the “Shakur family” was Dr. Shakur’s family, although there is no suggestion it could be another Shakur family. When her attention was drawn to the comment about the ex-wife, Mrs. Mohamed claimed not to know who the plaintiff meant by “the doctor,” when it is apparent on its face that the comment referred to Dr. Shakur. The plaintiff’s own evidence is to that effect.

[54] Mrs. Mohamed was an apologist for the plaintiff having engaged in sexual relations (whether consensual or not) with their brother’s wife, suggested it was Mrs. Alli who initiated those relations, and claimed not to know who the plaintiff was talking about when asked about the plaintiff’s mean-spirited comment about Dr. Shakur. Mrs. Mohamed’s evidence on these points was not credible. She did not demonstrate herself to be an impartial witness in her cross-examination transcript.

[55] Where Ms. Mohamed’s evidence conflicts with Mr. Alli’s evidence, I prefer the evidence of Mr. Alli. His evidence did not raise the credibility concerns I noted in Ms. Mohamed’s evidence.

[56] I conclude that Ashraf Alli made reference to a text message in the conversation he and Mr. Alli had with Ms. Mohamed on August 1, 2024, during the conversation where Mrs. Alli’s allegations of sexual assault against the plaintiff were discussed. Ms. Mohamed is mistaken in her belief that a text message accusing the plaintiff of sexual assault was discussed during the conversation she had with Mr. Alli on August 3, 2024.

[57] Because I find that Mr. Alli never made the alleged defamatory statement, I dismiss the claim against Mr. Alli.

Costs

[58] At my direction, by the hearing of the motion, the parties had uploaded their bills of costs and relevant offers to settle. I proposed to counsel that, once I had written my reasons on the merits, I would review the bills of costs and the offers to settle, and determine costs without further submissions. The parties were agreeable. That is the process I have followed.

[59] The three main purposes of modern costs rules are to indemnify successful litigants for the costs of litigation, to encourage settlement, and to discourage and sanction inappropriate behaviour by litigants: see Fong v. Chan (1999), 1999 CanLII 2052 (ON CA), 46 O.R. (3d) 330, at para. 22.

[60] Subject to the provisions of an act or the rules of this court, costs are in the discretion of the court, pursuant to s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43. The court exercises its discretion considering the factors enumerated in r. 57.01 of the Rules of Civil Procedure, including the principle of indemnity, the reasonable expectations of the unsuccessful party, and the complexity and importance of the issues. Overall, costs must be fair and reasonable: see Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 (Ont. C.A.), at para. 38. A costs award should reflect what the court views as a fair and reasonable contribution by the unsuccessful party to the successful party rather than any exact measure of the actual costs to the successful litigant: see Zesta Engineering Ltd. v. Cloutier (2002), 2002 CanLII 25577 (ON CA), 21 C.C.E.L. (3d) 161 (Ont. C.A.), at para. 4.

[61] The defendants are the successful parties on the motion and are presumptively entitled to their costs of the motion and the action.

[62] The costs outline filed by the defendants in respect of the action and the motion supports all-inclusive costs on a partial indemnity basis including HST of $33,104.47, or costs on a substantial indemnity scale, of $48,325.57. of which $2,662.27 are disbursements.

[63] The costs outline filed by the plaintiff supports all-inclusive partial indemnity costs of $24,101.92, or substantial indemnity costs of $34,636.18, of which $2,913.40 are disbursements

[64] The parties each made offers to settle. The plaintiff sought apologies and payment of damages. His offer is not relevant to costs.

[65] The defendants delivered two offers to settle. The first, dated August 18, 2022, was for a dismissal without costs, available for thirty days, and thereafter, a dismissal with costs on a substantial indemnity basis. On October 28, 2024, the defendants made a further offer, for a dismissal of the action with costs of the motion and the action on a partial indemnity basis in the amount of $22,230 plus HST and disbursements of $2,392 plus HST. Both offers were r. 49 offers. The first was replaced by the second, but can still be considered under r. 49.13.

[66] In my view, the defendants have beaten their offers to settle. The plaintiff would have been better off to take the first offer when it was made, or the second offer when it was made, before additional costs were incurred at the hearing of the motion.

[67] Unfortunately, counsel’s costs outline does not break out what fees was incurred after the commencement of the action, on February 2, 2022, up until the date of the first offer. I conclude that the bulk of the fees were incurred after the first offer. In my view, although the first offer must be considered under r. 49.13 rather than r. 49.10, it is just to award substantial indemnity costs from that point forward.

[68] In determining the quantum of costs that is fair and reasonable, I note that the defendants’ costs are significantly higher than the plaintiff’s costs, and conclude that the costs claimed by the defendants are outside of the reasonable expectations of the plaintiff.

[69] The litigation was important to all parties. It was not particularly complex. The defendants approached the issues in a focused manner, which resulted in an efficient resolution to the action. No party acted improperly in the litigation.

[70] Considering these factors, I fix the defendants’ costs at $30,000, to be paid by the plaintiff to the defendants within thirty days.

J.T. Akbarali J.

Date: December 13, 2024

[^1]: Both actions make reference to “other statements” that are not particularized, but in any event, the plaintiff has indicated that he restricts his claim in this action to the alleged text message and its repetition, while the second action makes no mention of the alleged text message or its repetition.