In Defamation’s Wake: Sabaratnam v. Yohanathan and the Cost of Unsubstantiated Claims
Background
The decision in Sabaratnam v. Yohanathan, 2024 ONCA 845, concerns an appeal brought by Mr. Mooka and his company, seeking to overturn a summary judgment that awarded the plaintiff $75,000 in damages for defamation, and $25,000 in punitive damages. The plaintiff also cross-appealed the motion judge’s refusal to grant a permanent injunction.
The defendants had authored several disparaging articles about the plaintiff on their company’s website. In response, the plaintiff issued a Notice of Libel, requesting the removal of the articles and an apology. The defendants failed to comply.
The motion judge noted that all parties were represented and that they had agreed the case was suitable for summary judgment. The judge also provided her reasoning for why the case met the criteria for summary judgment. While acknowledging that the central issue on the motion was damages, she nonetheless reviewed each of the defences raised by the defendants and concluded that none presented a genuine issue requiring a trial.
Appeal
The defendants raised three issues in their appeal:
- That the case was unsuitable for summary judgment;
- That they had valid defences to the defamation claim, including truth and fair comment;
- The quantum of damages assessed by the motion judge.
Analysis
The Court of Appeal swiftly rejected the argument that the case was unsuitable for summary judgment. The Court emphasized the difficulty of advancing this argument given the position taken by the defendants’ counsel before the motion judge, who had already concluded that the case was appropriate for summary judgment.
On the issue of defamation defences, the Court found that the defendants had failed to present any evidence supporting the truth of the allegations made in the articles. The defendants argued that the motion judge relied on poorly translated versions of the articles, which they claimed had been manipulated and inaccurately translated into English.
However, both the original articles and their English translations were attached to the statement of claim, and the defendants’ statement of defence admitted them, and did not allege that the translations were manipulated. Although the defence claimed inaccuracies in the English translations, no evidence was provided to substantiate this claim before the motion judge.
Recognizing this issue, the defendants sought to introduce fresh evidence before the Court of Appeal to either prove the truth of the allegations or show that, when properly translated, the articles were not defamatory. The Court of Appeal, however, rejected the fresh evidence, as it did not meet the stringent requirements for the admission of new evidence set out in R. v. Palmer, [1980] 1 S.C.R. 759. The Court noted that the evidence could and should have been presented to the motion judge.
The defendants’ explanation, that the failure to provide the evidence was due to errors by their counsel, was complicated by the defendants’ refusal to waive privilege over their former counsel’s file, thus preventing the plaintiff from responding to the argument. The Court clarified that even if the defendants had received ineffective assistance, this would not justify overturning the summary judgment. Claims of ineffective counsel should be addressed through a negligence action against the lawyer, not by appeal. Moreover, the Court pointed out that this case did not involve the kind of public interest that would allow ineffective counsel to be a valid basis for an appeal.
The Court also noted that, even if the fresh evidence were admitted, it was unlikely to affect the outcome, as the articles, even when properly translated, still contained defamatory content.
Regarding the third issue, damages, the Court emphasized that the assessment of damages is within the motion judge’s discretion. The defendants failed to show any error in the judge’s damages assessment.
Cross-Appeal: Permanent Injunction
Finally, the Court addressed the plaintiff’s cross-appeal, where he argued that the motion judge had erred in denying him a permanent injunction. The plaintiff sought to admit fresh evidence in support of this claim, but the evidence failed the Palmer test.
The evidence consisted of a single defamatory post on another website allegedly linked to the defendants, which was quickly removed after the plaintiff complained. The post did not identify the plaintiff by name, and more than two and a half years had passed since any other defamatory incidents. The Court found that the motion judge’s analysis was sound, and there was no error in denying the injunction.
Conclusions
Both the appeal and cross-appeal were dismissed.
This decision underscores the rigorous nature of summary judgment motions. It is insufficient to merely plead facts; evidence must be presented to substantiate claims and defences.
Additionally, the bar for introducing fresh evidence after the initial judgment is high. This case highlights the importance of ensuring all evidence is available before moving forward with a summary judgment motion. Furthermore, it demonstrates the significance of clear and specific pleadings.