In Sabaratnam v. Mooka, 2022 ONSC 4779,the plaintiff moved for summary judgment against the defendants, seeking general and punitive damages for defamation. The plaintiff’s motion was granted in part.
At all material times, the plaintiff was a member of the GTA Tamil community and an advisor for Sun Life Financial Distributors (Canada) Inc. and Sun Life Financial Investment Services (Canada) Inc. His clientele was primarily members of the Tamil community. He was a member of the board of directors of the Canadian Tamils’ Chamber of Commerce. The plaintiff was otherwise highly involved in the Tamil community in the GTA.
The Defendant, Tamil Mooka was a member of Canadian Tamils’ Chamber of Commerce, a cook for City of Toronto long-term care homes and the owner, operator, and sole employee of the Defendant, Paraii Media Group. Paraii Media Group runs a website with articles authored by Mr. Mooka.
On July 7, November 6, 7, 9 and 10, 2019, Mr. Mooka published a series of articles about the plaintiff on Paraii Media Group’s website. The articles alleged that the plaintiff engaged in criminal, fraudulent and improper conduct, including the misappropriation of funds while he was the president of the Canadian Tamils’ Chamber of Commerce.
The plaintiff served a Notice of Libel on the Defendants in November 2019 which asked, among other things, that the Articles be removed within 24 hours and that an apology be delivered within a week.
Mr. Mooka did not offer an apology and did not retract any of the statements, but provided a letter advising that Paraii Media Group would allow the plaintiff to be interviewed.
Further, two WhatsApp messages that contained allegations of financial wrongdoing against the plaintiff were allegedly sent to an unidentified list of recipients in December 2019.
This action was commenced on December 30, 2019. The plaintiff pleads that the Articles produced defamatory statements that meant that the plaintiff was dishonest, fraudulent, corrupt, engaged in political corruption for personal financial benefit, engaged in criminal behaviour, swindled and/or defrauded the Canadian Tamils’ Chamber of Commerce by misappropriating $928,388.00 in funds, was anti-Tamil, amongst other things.
The plaintiff pled that the WhatsApp Messages were defamatory. He stated that the articles and WhatsApp messages had damaged his personal and professional reputation. Further, the plaintiff alleged that the articles and messages were published/sent maliciously and in bad faith, with knowledge that they were false or with reckless disregard for their truth or falsity.
The defendants pled that the articles and WhatsApp messages were true or substantially grounded in truth. The defendants also indicated that the translations of the articles provided by the plaintiff were inaccurate. However, the defendant failed to provide any other translation.
The evidence used for the motion was affidavit evidence of the plaintiff and Mr. Mooka, the cross-examination of the plaintiff and the examination for discovery transcript of Mr. Mooka. The decision lists important excerpts from Mr. Mooka’s examination for discovery. The transcript indicated that he did not know the name of anyone who provided him with information about the plaintiff, that he claimed that he confirmed the information obtained with the President of the Canadian Tamils’ Chamber of Commerce (but failed to advise what was actually confirmed), and could not provide documentation that confirmed the claims.
Mr. Mooka claimed to have called the plaintiff several times before publishing the first article, but received no response. The plaintiff did not recall receiving any correspondence from Mr. Mooka asking him for his position or comment on any allegations. Mr. Mooka did not try to contact the plaintiff for any of the subsequent articles. During examinations for discovery, Mr. Mooka was non-responsive when asked what his true belief was.
The plaintiff’s affidavit referred to other events occurring at the same time that negatively impacted his earnings, including a letter sent to all of his SunLife clients advising that he had conducted Canadian Tamil Chamber of Commerce using his SunLife email without SunLife’s consent, and that there was no association between Sunlife and Canadian Tamil Chamber of Commerce.
The court confirmed that this was an appropriate case for summary judgment. The evidence provided revealed no meaningful dispute with respect to material facts.
It was noted that on a motion for summary judgment, the court is entitled to assume that the parties have advanced their best case and that the record contains all the evidence that the parties will present at trial. If the plaintiff meets the evidentiary burden of producing evidence on which the court could conclude that there is no genuine issue of material fact requiring a trial, the responding party must either refute or counter the moving party’s evidence or risk a summary judgment.
A plaintiff in a defamation action is required to prove 4 elements, on a balance of probabilities, to obtain judgment and an award of damages:
- that the defendant made a statement;
- that the words of the statement were defamatory (they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person);
- that the words in fact referred to the plaintiff; and
- that the words were published, meaning that they were communicated to at least one person other than the plaintiff.
If the 4 elements are established, damages are presumed, and then the onus to the defendant to advance a defence in order to escape liability.
The court confirmed that the evidence presented proved the required elements with respect to the Articles. However, the elements were not proven in regards to the WhatsApp messages. As such, the court dismissed the portion of the plaintiff’s motion relating to the WhatsApp messages.
The court also discussed the defences to the defamation claim that were advanced by the defendants, including: trust or justification ; responsible communication on matters of public interest ; qualified privilege ; and fair comment .
In this case, the defendants did not produce any evidence of the substantial truth of the defamatory statements in the Articles. Mr. Mooka provided an indication that he was provided with the statements by third parties, but could not provide the names of the third parties, interview notes, or corroborating documentation. The courts in turn concluded that none of the defences raised by the defendants raised any genuine issue requiring a trial. As such, the plaintiff was entitled to judgment for defamation with respect to the articles published by the defendants.
The court stated that in claiming general damages for defamation, the plaintiff bears no obligation to prove actual loss or injury. The damages are presumed from the publication of the false statement. The purpose of general damages in defamation actions is to console the victim and to vindicate and repair their reputation.
General damages to be awarded in a defamation case are entirely discretionary, and are decided on a case-by-case basis considering the following factors: (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, and (f) any evidence of aggravating or mitigating circumstances.
General damages were assessed in this case at $75,000.
The Court noted that to be awarded punitive damages, the plaintiff must meet two requirements: show that the defendant’s conduct was reprehensible, and that a punitive damages award is rationally required to punish the defendant and meet the objective of retribution, deterrence and denunciation.
The Court determined that a modest award of punitive damages in addition to the general damages award was rationally required to punish the defendants and meet the objective of retribution, deterrence and denunciation. The Court awarded $25,000 in punitive damages.
The biggest takeaway from this case is that the court considering a summary judgment motion should assume that the parties have put their best case forward, and led all the same evidence that would be presented at a trial. The court should accordingly decide the summary judgment motion based on the evidence before it on such a motion, provided it is satisfied it can fairly do so. Trust or Justification – The defendant must adduce evidence showing that the statement was substantially true.  Responsible communication on matters of public interest – The defendant must show two elements: (1) the publication must be on a matter of public interest; and (2) the defendant must show that publication was responsible (in that due diligence was done to confirm the truth of the statement).  Qualified privilege – The defendant must show that the statement was made in the performance of a social, moral, or legal duty in which the recipient had a corresponding interest in receiving the statement. These statements must be made in good faith. Thus, the privilege can be defeated where the motive behind the words was malice. Malice in this context includes any indirect motive or ulterior purposes.  Fair comment – The defendant must show that the comment must be on a matter of public interest, based on fact, must be recognisable as comment, and must satisfy the objective test of, “could any person honestly express that opinion on the proved facts?”. Even if all of the foregoing is satisfied, the defence of fair comment can be defeated if the plaintiff proves that the defendant was motivated by “express malice”.