Case reference: Kumar v. Khurana, 2015 ONSC 7858
This historical case summary discusses the decision identified above. Later decisions and legislative changes may affect how it applies today. Obtain legal advice about your circumstances.
The defendant published comments about the plaintiff on Facebook describing him as an extortionist who was obsessed with becoming a millionaire. The plaintiff sued the defendant for damages for defamation.
Held, the action should be allowed.
The statements complained of were defamatory. The plaintiff was awarded general damages in the amount of $15,000 and aggravated damages in the amount of $15,000.
Analysis
In Grant v. Torstar Corp., [2009] 3 S.C.R. 640, [2009] S.C.J. No. 61, 2009 SCC 61, the Supreme Court of Canada stated, at paras. 28 and 29:
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 that 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. If these elements are established on a balance of probabilities, falsity and damage are presumed, though this rule has been subject to strong criticism. . . . The plaintiff is not required to show that the defendant intended to do harm, or even that the defendant was careless. The tort is thus one of strict liability.
If the plaintiff proves the required elements, the onus then shifts to the defendant to advance a defence in order to escape liability.
In Hill v. Church of Scientology of Toronto (1995), 24 O.R. (3d) 865, [1995] 2 S.C.R. 1130, [1995] S.C.J. No. 64, the Supreme Court of Canada noted that awards of general damages for defamation were generally within the $20,000-$30,000 range between 1987 and 1995. At para. 169, the court stated:
Rather, the whole basis for recovery for loss of reputation usually lies in the general damages award. Further, a review of the damage awards over the past nine years reveals no pressing social concern similar to that which confronted the courts at the time the trilogy was decided. From 1987 to 1991, there were only 27 reported libel judgments in Canada, with an average award of $30,000. Subsequent to the decision in this case, from 1992 to 1995, there have been 24 reported libel judgments, with an average award of less than $20,000. This latter figure does not include the award in Jill Fishing Ltd. v. Koranda Management Inc., [1993] B.C.J. No. 1861 (S.C.), which involved the assessment of damages for a number of different causes of action. Therefore, there is no indication that a cap is required in libel cases.
In assessing damages, I am also guided by awards given in other cases, such as Barrick Gold, referenced below, and others which are described in Mina Mar Group Inc., at paras. 14-21.
Aggravated damages may be awarded to take into account the additional harm caused to the plaintiff’s feelings by the defendant’s outrageous and malicious conduct. 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.
In my view, the language of the Facebook statements clearly reflects the ill will felt by the defendant toward the plaintiff.
Finally, in assessing damages I also note that the defamatory statements were posted on Facebook. In Barrick Gold Corp. v. Lopehandia (2004), 71 O.R. (3d) 416, [2004] O.J. No. 2329 (C.A.), the Ontario Court of Appeal awarded $75,000 for general damages. The court stated, at paras. 31 and 34:
Communication via the Internet is instantaneous, seamless, interactive, blunt, borderless and far-reaching. It is also impersonal, and the anonymous nature of such communications may itself create a greater risk that the defamatory remarks are believed.
. . . Internet defamation is distinguished from its less pervasive cousins, in terms of its potential to damage the reputation of individuals and corporations, by the features described above, especially its interactive nature, its potential for being taken at face value, and its absolute and immediate worldwide ubiquity and accessibility. The mode and extent of publication is therefore a particularly significant consideration in assessing damages in Internet defamation cases.
*source: Ontario Reports
