Justin Van Leeuwen and JVLphotography Inc. v. Michael Calderone

Date: 2024-12-20 Court: Superior Court of Justice - Ontario

Re: Justin Van Leeuwen and JVLphotography Inc., Plaintiff (Moving Party) And: Michael Calderone (A.K.A. Michael Dupe, A.K.A. Mikey Calds), Defendant (Responding Party)

Before: Rees J.

Counsel: Ian Harris, for the plaintiffs No one appearing for the defendant

Heard: December 17, 2024

Endorsement

Introduction

[1] This is a motion for default judgment in a defamation action. The defendant, Mr. Calderone, has not defended these proceedings.

[2] The plaintiffs served Mr. Calderone with their statement of claim. He did not serve a statement of defence. He was later noted in default. The plaintiffs served Mr. Calderone with a courtesy copy of their motion for default judgment. He did not appear at the hearing for default judgment.

The law of default judgment

[3] Under r. 19.02(1)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, a defendant that has failed to defend a proceeding and has been noted in default is deemed to admit the truth of all the allegations of fact made in the statement of claim.

[4] In these circumstances, a plaintiff can move for default judgment under r. 19.05(1). A motion for default judgment shall be supported by evidence given by affidavit if the claim is for unliquidated damages: r. 19.05(2). A party moving for default judgment must show that the facts as alleged in the claim, while deemed to be admitted by the defendant noted in default, entitle the moving party to judgment: r. 19.06.

[5] On a motion for default judgment, the court must consider the following questions:

a. What deemed admissions of fact flow from the facts pleaded in the statement of claim?

b. Do those deemed admissions of fact entitle the plaintiff, as a matter of law, to judgment on the claim?

c. If they do not, has the plaintiff adduced admissible evidence which, when combined with the deemed admissions, entitles it to judgment on the pleaded claim?

See Elekta Ltd. v. Rodkin, 2012 ONSC 2062, at para. 14; Viola v. Hornstein, at para. 18.

Analysis

[6] Based on the deemed admissions of fact and the evidence filed, I make the following findings of fact.

[7] On September 3, 2023, Mr. Calderone posted to a public Facebook forum with approximately 3,500 members, alleging that Mr. Van Leeuwen had engaged in Internet trolling and repeated attacks on his business using fake accounts. These statements were false.

[8] Mr. Calderone also posted two false stories to his Instagram page. The first story falsely stated that Mr. Van Leeuwen attacked Mr. Calderone’s business with fake accounts, attacked Mr. Calderone’s Google reviews, spammed Mr. Calderone’s photography posts, and made degrading comments to people within Mr. Calderone’s network. Mr. Calderone encouraged his followers to take similar actions towards Mr. Van Leeuwen.

[9] The second story falsely stated that Mr. Van Leeuwen bullied him and called Mr. Van Leeuwen and another photographer “sick in the head.”

[10] Mr. Calderone’s Instagram page had approximately 12,700 followers.

[11] At the same time, Mr. Van Leeuwen’s Instagram page received numerous negative and untrue comments from a user who was in fact Mr. Calderone. The Instagram comments were posted to photographs Mr. Van Leeuwen published on his Instagram page as part of his professional portfolio. Many of the Instagram comments tagged Mr. Van Leeuwen’s followers.

[12] JVLphotography Inc. (“JVL”) was also “review bombed” on Google with a series of 1-star reviews from fictitious users falsely claiming to have used JVL’s services. Based on the deemed admissions of fact and the evidence filed, I find that these reviewers were in fact Mr. Calderone.

[13] I am satisfied that the facts pleaded in the statement of claim establish that Mr. Calderone made defamatory statements about the plaintiffs that (i) would tend to lower the reputations of the plaintiffs in the eyes of a reasonable person; (ii) refer to the plaintiffs by name, or that an ordinary and sensible person would understand refer to the plaintiffs; and (iii) were communicated to audiences on Facebook, Instagram and Google reviews.

[14] Based on the deemed admissions of fact and the evidence filed, I also find that Mr. Calderone acted with malice in publishing the defamatory statements because he knew the statements were false and published them with the dominant purpose of injuring the plaintiffs out of spite or animosity.

[15] Therefore, the plaintiffs are entitled to judgement on their claim.

Damages and injunctive relief.

[16] Although the plaintiffs seek general damages of $50,000 and aggravated damages of $10,000 in their submissions, they did not plead aggravated damages in their statement of claim. They only pleaded damages for defamation in the amount of $50,000. I will therefore not consider the plaintiffs’ submissions on aggravated damages as a distinct head of damages. That said, Mr. Calderone’s conduct remains relevant to the plaintiffs’ general damages claim.

[17] The plaintiffs also seek an injunction directing Mr. Calderone to permanently delete the defamatory statements wherever they were published and directing Mr. Calderone to permanently cease disseminating further defamatory statements concerning the plaintiffs.

[18] Once the elements of the tort are established, defamatory statements are presumed to be false and to have caused damage. If the plaintiff proves the required elements, the onus then shifts to the defendant to advance a defence to escape liability: Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640, at paras. 28-29.

[19] General damages for defamation compensate plaintiffs for the distress suffered, repair the harm to their personal and professional reputation, and vindicate their reputation: Post v. Hillier, 2022 ONSC 3793, 162 O.R. (3d) 741, at para. 24. General damages are awarded at large and a plaintiff need not prove a loss: Mina Mar Group Inc. v. Divine, 2011 ONSC 1172, at para. 13. General damages should not be punitive: Zoutman v. Graham, 2019 ONSC 2834, at para. 116.

[20] Relevant factors in determining general damages in defamation cases include: (a) the plaintiff’s position and standing; (b) the nature and seriousness of the defamatory statements; (c) the mode and extent of publication; (d) the absence or refusal of any retraction or apology; (e) the whole conduct and motive of the defendant from publication through judgment including trial; and (f) any evidence of aggravating or mitigating circumstances: Barrick Gold Corp. v. Lopehandia (2004), 71 O.R. (3d) 416 (C.A.), at para. 29.

[21] Damages for defamation can vary considerably. Ultimately, a general damages award depends on the facts of each case. The following cases have provided me with helpful guidance in determining an appropriate damages award: Mirzadegan v. Mahdizadeh, 2022 ONSC 6082; Emeny v. Tomaszewski, 2019 ONSC 3298; Post; Zoutman; D’Alessio v. Chowdhury, 2023 ONSC 6075; and Manson v. John Doe, 2013 ONSC 628.

[22] I award the plaintiffs $35,000 in general damages. This award is supported by the following facts:

a. Mr. Van Leeuwen is an upstanding, well-respected member of the community and within his profession;

b. Mr. Calderone targeted the plaintiffs professionally, and a positive professional reputation is critical to their business;

c. Mr. Calderone targeted the plaintiffs with the intention of injuring their personal and professional reputations and harming their business;

d. Mr. Calderone defamed the plaintiffs by posting on the internet, including on social media, which is a more pervasive medium than print and which has significant power to harm the plaintiffs’ reputation;

e. Mr. Calderone used the internet to hide his identity; and

f. Mr. Calderone failed to apologize and publish a retraction of the defamatory statements.

[23] I now turn to the injunctive relief sought by the plaintiffs. Permanent injunctions are available where there is a likelihood that the defendant will continue to publish defamatory statements notwithstanding a finding of liability for doing so. They are also available where there is a real possibility that the plaintiff will not recover damages, given the difficulties of enforcing a judgment: Paramount v. Kevin J. Johnston, 2019 ONSC 2910, at para. 84.

[24] I am advised that Mr. Calderone’s defamatory activity has stopped. I am also advised that the Google reviews and Instagram posts were removed, and the Instagram stories automatically expired. (The only unknown is Mr. Calderone’s defamatory Facebook posts.) Given this, I decline the injunctive relief sought – it is unnecessary and there is no evidence before me that the plaintiffs will be unable to enforce a judgment.

Disposition

[25] I grant default judgment to the plaintiffs.

[26] I award the plaintiffs $35,000 in general damages, plus pre- and post-judgment interest.

[27] The plaintiffs filed a costs outline and a bill of costs. They seek $10,988.01 in partial indemnity costs plus $1,176.95 for disbursements in the action. This is fair and reasonable.

[28] The defendant shall pay the plaintiffs costs of $12,164.96, all inclusive.

Justice Owen Rees Date: December 20, 2024