Bullying is Never Okay

April 24, 2024

By Celina Stoan

Overview

The case of Clancy v. Farid (liability decision reported at 2022 ONSC 947, and damages decision reported at 2023 ONSC 2750) involved 53 individually named plaintiffs and one defendant, Tanvir Farid. The plaintiffs resided in Canada, the United States and Ireland, and all but one were executives or recruiters in the IT industry (including Cisco, Oracle, Amazon, Hewlett-Packard, MVware and Dell). The 53rd plaintiff was a lawyer, Fahrin Jaffer.

All of the executive/recruiter plaintiffs were involved recruitment processes for jobs in which Mr. Farid was unsuccessful. Ms. Jaffar was not involved in any of Mr. Farid’s recruitment processes, her only involvement with Mr. Farid was to reject his romantic advancements through an online dating site.

Over the course of more than a decade, Mr. Farid made tens of thousands of internet postings about the plaintiffs, depicting them as prostitutes, escorts, pedophiles, child molesters, registered sex offenders, rapists and adulteress escorts. The postings state that the plaintiffs have sexually assaulted or harassed others, have sexually transmitted diseases, commit adultery, are engaged in criminal activities, are sexually promiscuous, have engaged in fraud and/or misappropriation, and are racist, homophobic and xenophobic. Photographs of the plaintiffs were posted in the comments and these posts were further multiplied by internet bots. After the plaintiffs commenced their action, similar postings surfaced involving their counsel.

The Litigation

This matter was heard by summary judgment. The litigation leading up to it was, to put it mildly, a wild ride:

  • Justice Archibald, on the basis of an 11 volume motion record, made an Anton Piller Order (which the defendant was subsequently alleged to be in contempt of) for seizure of the defendant’s electronic devices;
  • The Anton Piller Order and its execution was reviewed by Justice Pattillo who found no impropriety;
  • Further mandatory injunctive relief was ordered;
  • A forensic digital report and a linguistics expert report were produced;
  • Affidavits from all 53 plaintiffs, the forensic investigator and the linguistics expert were produced;
  • The defendant’s counterclaim against the plaintiff’s counsel, the forensic digital investigating firm and its investigators, was struck by Justice Pattillo, without leave to amend on the basis it was frivolous, vexatious and an abuse of process; and
  • An adjournment of the summary judgment motion was granted for the defendant to complete cross examinations.

Still, following all this, at the hearing of the summary judgment motion, Mr. Farid, despite the findings of Justice Pattillo, again challenged the legitimacy of the Anton Piller Order and its execution. Mr. Farid also sought an order reinstating the counterclaim previously struck, despite no appeal having been taken of Justice Pattillo’s order and no motion brought to set it aside.

Finally, on the fifth day of the hearing of the summary judgment motion, the defendant interrupted the hearing and directed his counsel to seek another adjournment to file new evidence. This was denied.

Liability Decision

Expert reports were crucial to the Court’s determination that Mr. Farid was the author of the postings.

Specifically, a report authored by Ryan Duquette of RSM linked Mr. Farid’s recovered devices directly to the postings through electronic evidence extracted, which included the plaintiffs’ names, photographs, particular words and phrases that appear in postings and internet-based activity related to viewing the websites where the defamatory postings appear. In addition, Mr. Farid’s devices had been connected to IP addresses that were used to post some of the postings about the plaintiffs.

This was supplemented by evidence from an expert linguist who compared the postings to several documents known to be written by Mr. Farid and concluded that the postings, based on syntactic patterns, were authored by him.

The test for defamation is three-fold:

  • The impugned words must refer to the plaintiffs;
  • The impugned words must be defamatory in the sense that they would tend to lower the plaintiffs’ reputation in the minds of a reasonable person; and
  • The impugned words must be published – i.e. communicated to at least one person other than the plaintiffs.

Justice Ramsey had no difficulty finding that the postings made by Mr. Farid, a sample of which is noted at paragraph 68 of their decision, satisfied each branch of the test. Mr. Farid did not plead any of the available affirmative defences (justification/truth, fair comment, or qualified privilege). Specifically, Justice Ramsey found that upon being rejected by the plaintiffs, Mr. Farid engaged in a sustained, malicious, calculated and continuous campaign of cyber defamation, cyber-bullying and cyber-harassment.

Justice Ramsey went on to find that the “bots” were a feature of the internet and that it was reasonably foreseeable that the postings would be replicated and multiplied on the internet.

Damages Decision

The goal of damages in a defamation case is to compensate for “insult offered, and pain given”, vindication of reputation, injury to pride and self-confidence, social damage and possible economic damage.

The plaintiffs experienced reputational harm and serious emotional distress. They received no apology and no public vindication. Some also experienced financial consequences. However, the plaintiffs were not required to prove actual injury or loss. General damages were presumed from the publication of the false statements, which Justice Archibald described as “false, salacious, outrageous and malevolent defamation of the plaintiffs”.

Considerations with respect to the quantum of damages included mode and extent of publication. The fact that these comments were posted on the internet was considered to be a significant factor justifying a larger award. Mr. Farid’s refusal to retract or apologize for the defamatory statements was considered an aggravating factor that supported a larger award.

The total award was over four million dollars in general damages. The individual awards ranged from $50,000 – $95,000, and were based on whether the plaintiff was an executive, senior level recruiter, and the publications themselves. The majority of the individual awards leaned towards the higher end of the spectrum. 

The Court determined that Mr. Farid’s choice of the defamatory content, where the postings were made and the medium were calculated to cause the maximum reputational harm. Justice Ramsay agreed with the plaintiffs that Mr. Farid’s conduct was malicious, vindictive, reprehensible and outrageous.

Punitive damages of $9,000 per plaintiff were also awarded, and 34 of the 53 plaintiffs were awarded $1,500 each in aggravated damages. In making this award, Justice Ramsey noted that the nature of the defamatory statements and corresponding defamatory meaning was extremely serious. Mr. Farid’s conduct was described as “so malicious, oppressive and high-handed that it offended the Court’s sense of decency”.