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FOR TORTS - Affecting the person - Defamation - Method of publication - Internet

Thursday, February 22, 2018 @ 9:39 AM  

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Appeal by the defendants from an award of damages for defamation. The respondent was a chartered accountant. He and the individual defendants were business associates and members of Toronto’s Orthodox Jewish Community. Following a business disagreement, the appellants commenced litigation against the respondent. The litigation eventually settled. However, the appellants were unhappy with some of the terms of the settlement and subsequently began an internet defamation campaign against the respondent. The campaign was designed to harm the respondent’s personal and professional reputations and involved internet postings of numerous defamatory allegations, including that he was engaged in tax fraud, and was a thief and a cheat. The statements were made by the appellant Rabinowitz, who admitted liability at trial. Bergman claimed he never agreed to the campaign and was not aware of it for several months, but the judge rejected his evidence. The trial judge found him and the corporate defendant jointly and severally liable for defamation. He awarded $200,000 general damages against all three defendants, $200,000 aggravated damages and $250,000 punitive damages against Rabinowitz and $50,000 punitive damages against Bergman. Rabinowitz appealed the damage awards on the grounds that they were inordinately high. The other defendants appealed the finding of joint and several liability. Alternatively, they sought a reduction in the amount of damages. Bergman also sought to vacate the punitive damages awarded against him.

HELD: Appeal dismissed. The trial judge was correct to hold that the test for concerted action liability was made out in respect of Bergman. That Bergman did not publicly approve or repeat the defamatory statements did not absolve him of liability for Rabinowitz’s tortious conduct. Bergman was not merely a passive observer. There was ample evidence to support the trial judge’s finding that the appellants had a common design to cause the respondent harm. As a result, it was open to the trial judge to find that the foundation for finding concerted action liability was established, thereby rendering Bergman jointly and severally liable. The evidentiary record supported a finding that Bergman was aware of and approved of Rabinowitz’s internet defamation campaign. As the individual appellants were the controlling shareholders of the corporate appellant, and authorized the use of its equipment in the defamation campaign, there was a basis to find the corporate appellant vicarious liable. Being a defamation case, there was no obligation on the respondent to prove actual loss or injury. While the respondent acknowledged he was unaware of any specific injury to his reputation, he did not concede that he sustained no reputational damage. It was impossible for the respondent to know what members of the public, colleagues or others might have been affected by the appellants’ defamatory comments. The nature and reach of the defamatory conduct supported a significant damage award. Furthermore, Rabinowitz admitted that his conduct was motivated by actual malice. Given the fact-specific nature of defamation cases, other cases were not instructive on the issue of the quantification of damages. The trial judge was aware of and properly applied the principles of punitive damages. The award of punitive damages was rational and proportional. The conduct persisted over many years, neither individual appellant showed any remorse for their conduct and they destroyed relevant evidence in the face of court orders.

Rutman v. Rabinowitz, [2018] O.J. No. 486, Ontario Court of Appeal, E.A. Cronk, G. Huscroft and I.V.B. Nordheimer JJ.A., January 31, 2018. Digest No. TLD-Feb192018007