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Warman v. Grosvenor, 2008 CanLII 57728 (ON SC)

Date:
2008-10-20
File number:
08-CV-40460SR
Other citation:
92 OR (3d) 663
Citation:
Warman v. Grosvenor, 2008 CanLII 57728 (ON SC), <https://canlii.ca/t/21gdw>, retrieved on 2024-03-28


Warman v. Grosvenor

92 O.R. (3d) 663

Ontario Superior Court of Justice,

Ratushny J.

October 20, 2008

Damages -- Aggravated damages -- Defendant making defamatory statements about plaintiff in Internet posts and committing tort of assault by threatening plaintiff -- Defendant continuing to make posts and sending e-mails to plaintiff after being given opportunity to apologize and desist -- Defendant motivated by malice and acting dishonestly and with knowing or reckless disregard of truth -- Plaintiff waiving damages over $50,000 in order to bring action under Simplified Rules -- Plaintiff awarded aggravated damages in amounts of $10,000 for defamation and $5,000 for assault.

Damages -- General damages -- Defendant making defamatory statements about plaintiff in Internet posts and committing tort of assault by [page664] threatening plaintiff -- Plaintiff waiving damages over $50,000 in order to bring action under Simplified Rules -- Plaintiff awarded general damages in amounts of $20,000 for defamation and $15,000 for assault.

Torts -- Assault -- Plaintiff involved in human rights work relating to hate propaganda on Internet -- Defendant posting plaintiff's address and telephone number on Internet, inviting people to visit him and making death threats -- Defendant's conduct making plaintiff apprehensive of imminent physical harm -- Elements of tort of assault made out.

Torts -- Defamation -- Plaintiff involved in human rights work relating to hate propaganda on Internet -- Defendant making defamatory statements about plaintiff in Internet posts -- Posts exposing plaintiff to hatred, ridicule and contempt -- Posting of defamatory messages on Internet constituting publication -- Plaintiff awarded general damages in amount of $20,000 and aggravated damages in amount of $10,000 for defamation.

Torts -- Invasion of privacy -- Plaintiff involved in human rights work relating to hate propaganda on Internet -- Defendant posting plaintiff's address and telephone number on Internet, inviting people to visit him and making death threats -- Defendant posting defamatory comments about plaintiff -- Defendant invading plaintiff's privacy but damages claimed by plaintiff for tort of invasion of privacy not distinct from those flowing from torts of defamation and assault -- Plaintiff not entitled to damages for invasion of privacy.

The plaintiff, a lawyer, was involved in human rights work relating to hate propaganda on the Internet. He sued the defendant, an Alberta resident, for damages for defamation, assault and invasion of privacy based on Internet posts by the defendant and e-mails sent to him by the defendant. The plaintiff waived damages over $50,000 so that he could proceed under the Simplified Rules. He also sought a complete retraction of the defendant's defamatory comments and a permanent injunction.

Held, the action should be allowed.

The elements of defamation were made out. The posts were clearly defamatory according to their ordinary meaning. They were calculated to be personally and professionally insulting and demeaning. They referred to the plaintiff as a dishonest man, liar, scumbag, pimp and disgusting maggot, alleged that he was part of organized crime and financed by "mobs", falsely alleged that he was convicted of child molestation, and attacked his credibility and reputation as a lawyer. They exposed the plaintiff to hatred, contempt and ridicule from others. The defamatory words were published. The defendant caused defamatory words to be communicated to others by the Internet posts and each time he reposted the same defamatory words in the postings, he created a new publishing of those words.

The elements of the tort of assault were also made out. Assault is the intentional creation of the apprehension of imminent harmful or offensive contact. Damages are recoverable by someone who is made apprehensive of immediate physical contact, even though that contact never occurs. The defendant posted the plaintiff's residence address and phone numbers, and urged readers to "pay him a visit". He referred to him as a "dead Jew walking". One of his posts concluded with the message, "I have a Ruger P-90 and its bullets have your name on them". One of his e-mails said, "Your day of reckoning is coming, you little homo creep." [page665] The posts and e-mails continued for over two years. They persistently expressed hatred and anger and called on others to act against the plaintiff. They were not general threats. They made the plaintiff apprehensive of imminent physical harm, and reasonably so.

By publishing the plaintiff's personal information, including an aerial photograph and map of his residence, the defendant's posts invaded the plaintiff's privacy. However, assuming that there is a common-law right to privacy in Canada, damages for the tort of invasion of privacy would have to flow from harm that was not subsumed by the torts of defamation and assault. The damages claimed by the plaintiff for invasion of privacy were not distinct from those flowing from the other torts.

The defendant was given the opportunity to retract his comments, to apologize and to stop making the defamatory statements, and refused to do so. He was motivated by malice and acted dishonestly and with knowing or reckless disregard of the truth. The plaintiff was entitled to aggravated damages. An award of general and aggravated damages in the amount of $175,000 would be appropriate. As the plaintiff had waived the excess over $50,000, damages were awarded in the amounts of $20,000 as general damages for defamation, $10,000 as aggravated damages for defamation, $15,000 as general damages for assault and $5,000 as aggravated damages for assault. The plaintiff was also entitled to the requested injunctive relief.

ACTION for damages for defamation, assault and invasion of privacy, and for an injunction.

Cases referred to Barrick Gold Corp. v. Lopehandia (2004), 2004 CanLII 12938 (ON CA), 71 O.R. (3d) 416, [2004] O.J. No. 2329, 239 D.L.R. (4th) 577, 187 O.A.C. 238, 23 C.C.L.T. (3d) 273, 49 C.P.C. (5th) 1, 31 C.P.R. (4th) 401, 131 A.C.W.S. (3d) 655 (C.A.); Botiuk v. Toronto Free Press Publications Ltd., 1995 CanLII 60 (SCC), [1995] 3 S.C.R. 3, [1995] S.C.J. No. 69, 126 D.L.R. (4th) 609, 186 N.R. 1, J.E. 95-1800, 85 O.A.C. 81, 26 C.C.L.T. (2d) 109, 57 A.C.W.S. (3d) 592; Finocchio v. Kurtesi, [2007] O.J. No. 5581, 2007 WL 977444, 2007 CarswellOnt 1895 (S.C.J.); Griffin v. Sullivan, [2008] B.C.J. No. 1333, 2008 BCSC 827; Hill v. Church of Scientology of Toronto (1995), 1995 CanLII 59 (SCC), 24 O.R. (3d) 865, [1995] 2 S.C.R. 1130, [1995] S.C.J. No. 64, 126 D.L.R. (4th) 129, 184 N.R. 1, J.E. 95-1495, 84 O.A.C. 1, 25 C.C.L.T. (2d) 89, 30 C.R.R. (2d) 189, 56 A.C.W.S. (3d) 495; Nitsopoulos v. Wong, 2008 CanLII 45407 (ON SC), [2008] O.J. No. 3498, 169 A.C.W.S. (3d) 74 (S.C.J.); Reichmann v. Berlin, [2002] O.J. No. 2732, [2002] O.T.C. 464, 115 A.C.W.S. (3d) 343 (S.C.J.); Southam Inc. v. Chelekis, [2000] B.C.J. No. 314, 2000 BCCA 112, 133 B.C.A.C. 253, 73 B.C.L.R. (3d) 161, 94 A.C.W.S. (3d) 664, affg [1998] B.C.J. No. 848, 79 A.C.W.S. (3d) 66 (S.C.); Umlauf v. Umlauf (2001), 2001 CanLII 24068 (ON CA), 53 O.R. (3d) 355, [2001] O.J. No. 1054, 197 D.L.R. (4th) 715, 142 O.A.C. 328, 9 C.P.C. (5th) 93, 104 A.C.W.S. (3d) 99 (C.A.); Warman v. Fromm, [2007] O.J. No. 4754 (S.C.J.); Weiss v. Sawyer (2002), 2002 CanLII 45064 (ON CA), 61 O.R. (3d) 526, [2002] O.J. No. 3570, 217 D.L.R. (4th) 129, 163 O.A.C. 2, 116 A.C.W.S. (3d) 950 (C.A.); Whiten v. Pilot Insurance Co., [2002] 1 S.C.R. 595, [2002] S.C.J. No. 19, 2002 SCC 18, 209 D.L.R. (4th) 257, 283 N.R. 1, J.E. 2002-405, 156 O.A.C. 201, 20 B.L.R. (3d) 165, 35 C.C.L.I. (3d) 1, [2002] I.L.R. I-4048, 111 A.C.W.S. (3d) 935 Statutes referred to Libel and Slander Act, R.S.O. 1990, c. L.12, ss. 1(1), 5(1), 7 Privacy Act, R.S.B.C. 1996, c. 373, s. 1 Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 19.02(1), 19.05 [as am.], 19.06 [page666] Authorities referred to Linden, Allen M., and Bruce Feldthusen, Canadian Tort Law, 8th ed. (Markham, Ont.: LexisNexis, 2006) Rainaldi, L., ed., Remedies in Tort, looseleaf (Toronto: Carswell, 2006)

Judith Parisien, for plaintiff.

[1] RATUSHNY J.: -- The plaintiff seeks to stop the defendant's two-year "campaign of terror" against him, achieved through postings on the Internet and personal e-mails.

[2] The plaintiff is a lawyer who works for the Government of Canada and resides in Ottawa, Ontario. He is involved in extensive human rights work relating to hate propaganda on the Internet.

[3] The defendant resides in Edmonton, Alberta.

[4] The plaintiff requests general, aggravated and punitive damages in the total amount of $50,000 for defamation, assault and invasion of privacy. He also requests a complete retraction of the defendant's defamatory comments and a permanent injunction.

Procedural Background

[5] The Statement of Claim was issued on January 14, 2008 and personally served on the defendant on January 15, 2008.

[6] The defendant served a Notice of Intent to Defend on February 21, 2008, but failed to ever file a defence. He was noted in default on March 11, 2008.

[7] The plaintiff next brought a motion for judgment pursuant to rule 19.05 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the "Rules"). For reasons set out in her Endorsement dated July 18, 2008, Toscano-Roccamo J. of this court ordered the action proceed to trial and oral evidence be presented.

[8] The plaintiff testified at trial. He introduced additional evidence to that contained in his affidavit dated June 30, 2008 (the "affidavit") and in the original motion record. In his testimony, he reviewed the contents of various Internet postings and personal e-mails. He explained, as he had already stated in the affidavit, why he believed the defendant was the author of all the postings on the Internet entered into evidence at trial (the "postings") and the e-mails sent directly to him, also as admitted as evidence at trial (the "e- mails"). He spoke of the importance to him of his reputation as a lawyer and of the horror and fear he experiences because of these postings and e-mails. He said the defendant has [page667] continued his campaign against him up to the present time. He described the defendant's comments as vicious, violent and malevolent. He said he has never, except through his counsel in this action, made any contact whatsoever with the defendant. Deemed Admission of Facts

[9] Because the defendant has been noted in default, the Rules deem him to have admitted the truth of all allegations of fact made in the Statement of Claim: rule 19.02(1).

[10] However, the Rules also make it clear that the plaintiff is not entitled to judgment merely because the facts alleged in the Statement of Claim are deemed to be admitted, unless those facts entitle the plaintiff to judgment: rule 19.06.

[11] In other words, as I understand rule 19.06 and the plaintiff's submissions including his reliance on Umlauf v. Umlauf (2001), 2001 CanLII 24068 (ON CA), 53 O.R. (3d) 355, [2001] O.J. No. 1054 (C.A.), while the facts deemed admitted must show all the required elements of each tort alleged for there to be liability, the "facts going to liability are deemed to be true but the facts going to damages must be proven": Umlauf, at para. 9. Identification of the Defendant

[12] I did have some initial concerns as to the reliability of the plaintiff's identification of the defendant as the author of the postings and the e-mails, notwithstanding the deemed admission of the truth of the allegations by virtue of the operation of the Rules, which arguably could be said to only amount to deemed admissions by a defendant called William Grosvenor, without there being an evidentiary link to establish that the person who was served with the Statement of Claim was the same person who was the author of the postings and the e- mails.

[13] My review of the evidence satisfies me, however, that the plaintiff has proved the defendant to be the author of the postings and the e-mails. I accept the plaintiff's analysis of the issue of identification contained in paras. 11-18 of the affidavit, as supplemented by his evidence at trial.

[14] The following evidence is particularly persuasive. In 1996 by way of an Internet posting, a person who identified himself as William Grosvenor called on "mature ladies" to contact him at a certain address in Edmonton. This was the same address used to serve the Statement of Claim on the defendant with the same name. The defendant of the same name responded, giving this same address in his Notice of Intent to Defend. The e-mails began on January 16, 2008, which was the day after the Statement of [page668] Claim had been served on the defendant. The first of the e-mails repeated, in the same words, the invitation to others to harm the plaintiff and the links to the plaintiff's former home address combined with an aerial photograph, as had been contained in some of the previous postings. The further e-mails have continued some of the same patterns exhibited by the postings in terms of their style, content and obsessions. Summary of the Admitted Facts

[15] The postings by the defendant began, as far as the plaintiff is aware, in the spring of 2006 and they continue to be made at the present time. The postings have been published throughout Canada and the world by way of Google Web site groups, Mailgate website groups and NNTP2HTTO.com Web site groups. The plaintiff understands the servers for these website groups are in California U.S.A, Italy and Germany respectively.

[16] The first posting from the defendant, as referred to in the Statement of Claim, is dated August 25, 2006. It contains the following words (they are an excerpt only) that were then posted on the Internet by the defendant at least 11 times:

I mean, what does Warman think? That we're just going to let him imprison and harass and victimize people while we stand by and smile? Let him meet his just fate -- execution at the hands of a people's government.

[17] The second posting from the defendant, as referred to in the Statement of Claim, is dated September 7, 2006. It contains the following words (they are an excerpt only) that were then posted on the Internet by the defendant at least three times:

"Richard Warman Address -- To Get Protests -- He Wants Lots of Visitors"

Warman, Canadians don't need government babysitters to tell us what to think or what websites we should read. Stop your hate crimes against the Canadian people, we don't need Zionazis thought enforcement on the internet when you bastards control most of the media. You just create a backlash that lets people see the Zionazis for what they really are -- actually, never mind, keep trying to suppress free speech so at least Canadians can see you scumbags for what you are.

We got an email today from a Canadian comrade saying he is planning ARA-style protests outside of the communist co-op that Richard Warman calls home.

[18] The third posting from the defendant, as referred to in the Statement of Claim, is dated October 3, 2006. It contains the same words referred to in the above excerpt as were in the second posting. The defendant then posted these words on the Internet at least 18 times.

[19] The fourth posting from the defendant, as referred to in the Statement of Claim, is dated December 29, 2006. It contains [page669] the following words (they are an excerpt only) that were then posted on the Internet by the defendant at least 14 times:

"Richard Warman Wants Lots of Visitors, Callers -- Repost"

You just create a backlash that lets people see the Zionazis for what they really are -- actually, never mind, keep trying to suppress free speech so at least Canadians can see you scumbags for what you are.

. . . protests outside of the communist co-op that Richard Warman calls home.

[20] The fifth posting from the defendant, as referred to in the Statement of Claim, is dated November 10, 2007. It contains the following words (they are an excerpt only) that were then posted on the Internet by the defendant at least six times:

"Canada Awake! The Time To Cast Off Your Chains Is Now"

A gay gook named Fo Niemi recruited Jew hatemonger Richard Warman for that purpose. These are not average Canadians
-- but they are officials in your government. And they are not out to preserve your human rights, but to strip you of your humanity. There is no crime against white people that the Canadian government will not protect.

In fact, the Canadian government is organizing crime. This same Jew attorney, Richard Warman, hired a bus and organized the mob that attacked Paul Fromm at his home. He has been organizing and financing vigilante mobs who attacks critics of Jewish power for years. He is a gangster and an organized crime figure -- but he is one acting under the protection of the Jews.

[21] The sixth posting from the defendant, as referred to in the Statement of Claim, is dated September 22, 2007. It contains the following words (they are an excerpt only) that were then posted on the Internet by the defendant at least once:

"Faggoty-looking lawyer crusades AGAINST free speech"

To find out more about this communist, scumbag menace to free expression, just do a Google search on his name. And then pay him a visit . . .

[22] The sixth posting then goes on to give the plaintiff's correct residential address at the time, his phone number, aerial photos and a map of how to get to his residence, and the contact details for the management of that co-op residence, saying "Encourage your readers to email the co-op and complain about their resident (he may get kicked out if they get enough complaints)".

[23] The seventh posting from the defendant, as referred to in the Statement of Claim, is dated September 23, 2007. It contains the following words (they are an excerpt only) that were then posted on the Internet by the defendant at least six times: [page670]

He's a dead Jew walkin'

He's a dead Jew walkin'. . .

It's just a dead Jew talkin'

He had a job, he had a boyfriend, . . .

Like a dead Jew walkin' . . .

To find out more about this communist, scumbag menace to free expression, just do a Google search on his name. And then pay him a visit . . .

Employer: Bernie "Superkike" Farber, Canadian Jewish Congress. Mugshots of the white nigger can be found here:
. . .

[24] The eighth posting from the defendant, as referred to in the Statement of Claim, is dated September 19, 2007. It contains the words referred to above in the fourth posting. The defendant then posted these words on the Internet at least eight more times.

[25] The ninth posting from the defendant, as referred to in the Statement of Claim, is dated October 12, 2007. It contains the following words (they are an excerpt only) that were then posted on the Internet by the defendant at least 200 times:

"Why are ZYDs/Jews So Hated Worldwide?"

When creatures such as Richard Warman use the Canadian Human Right Commission to persecute individuals for having a different political opinion, or even for being politically incorrect, the people who THINK start wondering about the truth of much that Warman and his ilk are promulgating!

[26] The tenth posting from the defendant, as referred to in the Statement of Claim, is dated October 15, 2007. It contains the words referred to above in the seventh posting. The defendant then posted these words on the Internet at least eight more times.

[27] The eleventh posting from the defendant, as referred to in the Statement of Claim, is dated October 19, 2007. It contains the following words (they are an excerpt only) that were then posted on the Internet by the defendant at least once:

Mamzer Warman likes litigating people whom the jews have targeted in Canada. He derives pleasure in hurting people financially for mere words are not libelous but not friendly to the kike agenda Warman serves. He's a disgusting maggot.

[28] The twelfth posting from the defendant, as referred to in the Statement of Claim, is dated November 8, 2007. It contains the following words (they are an excerpt only) that were then posted on the Internet by the defendant at least six times: [page671]

"Tricky Dick" Warman and His War On Dissent

No wonder people consider this creature almost sub-human . . .

This man holds between his ears the prototypical Jewish extremist mind with its paranoia, its almost inbred disgust for the Gentile and his culture, its power-mad delusion of dog-like control over the masses, its "inalienable right" not to be offended, its reflexive and intractable totalitarianism
(the Bolshevik brain) and the borderline personality disorder of so many Jewish power-players in the zealous Zionist crime syndicate . . .

How does Dick Warman, either crypto-Jew or Shoddy Goy, play the pimp for Big Jewry so effectively? Simple. He is part of the Government/Jewry Complex . . .

To find out more about this communist, scumbag menace to free expression, just do a Google search on his name. And then pay him a visit . . .

[29] The twelfth posting, as in the sixth posting referred to above, lists the plaintiff's address and urges people to contact that address's management personnel.

[30] The thirteenth posting from the defendant, as referred to in the Statement of Claim, is dated November 9, 2007. It contains the following words (they are an excerpt only) that were then posted on the Internet by the defendant at least three times:

"Female Activist Faces 'Thought Crime' Charges"

Female Activist Faces 'Thought Crime' Charges -- Another Victim of Warman"

[31] The fourteenth posting from the defendant, the last referred to in the Statement of Claim, is dated January 7, 2008. It contains the following words (they are an excerpt only) that were then posted on the Internet by the defendant at least five times:

"OTTAWAN RICHARD WARMAN AND NANAIMOIAN KENNETH "NIZKOR" MCVAY ARE LOVERS & FAGS"

RICHARD WARMAN AND HIS COMMUNIST AGENDA, WHERE HE LIVES AND HIS CRIMINAL CHILD MOLESTING CONVICTION

To find out more about this communist, scumbag menace to free expression, just do a Google search on his name. And then pay him a visit: . . .

RICHARD WARMAN (WAS) JAILED FOR SEXUALLY ASSAULTING 13 YEAR OLD . . .

Richard Warman Jailed for sexually assaulting 13 year old BO8518 / Thu, 1 Sep 2005 15:28:13 / Human rights Richard Warman jailed for underage affair

Richard Warman, who booked a hotel room to have sex with a 13-year-old schoolgirl was jailed for 18 months.

The love frolic occurred mainly at the Comfort Inn, the relationship lasted ten months between the couple. [page672]

Jailing Richard Warman Judge Richard Rundell told him: "You are a danger to young girls. You corrupted this vulnerable victim and took advantage of her for your own sexual gratification."

The hotel booking showed a degree of planning, he added, and unprotected sex on most occasions illustrated "highly irresponsible" behaviour. "She said no at first but he
(Richard Warman) worked his charm on her and she found him good looking," he said.

Mr. Shakoor said Richard Warman lacked intelligence.

I AM GOD AND I HAVE A RUGER P-90 AND IT'S BULLETS HAVE YOUR NAME ON THEM FAGBOY WARMAN.

[32] The postings continued in this vein after the service of the Statement of Claim on the defendant on January 15, 2008, as reviewed by the plaintiff at trial. Most of the further postings duplicated material from the postings referred to in the Statement of Claim.

[33] The e-mails are also repetitive of the same themes. The plaintiff received the first of the e-mails on January 16, 2008, the day after the service of the Statement of Claim on the defendant. On January 19, 2008, six identical e-mails were sent to the plaintiff with only the "Subject" line changed. Since January 2008, the plaintiff has received over 60 e-mails from the defendant. In March 2008, the following threat was included by the defendant and repeated four times:

Why haven't you followed up on your threat to sue him, asshole? We all know why: because you are a cowardly bully who only picks on people who can't fight back. Your day of reckoning is coming, you little homo creep!

[34] The defendant has continued the postings and the e- mails, notwithstanding the plaintiff's service on him in November 2007 of a Notice of Libel pursuant to the Libel and Slander Act, R.S.O. 1990, c. L.12 (the "Act") regarding some of the postings and also notwithstanding, as mentioned before, the service on him of the Statement of Claim and the response from him by way of a Notice of Intent to Defend. The postings and the e-mails continue at the present time. The Postings have never been removed or retracted and the defendant has never apologized to the plaintiff for the postings and the e-mails. Notice Pursuant to the Libel and Slander Act

[35] Section 5(1) of the Act states,

5(1) No action for libel in a newspaper or in a broadcast lies unless the plaintiff has, within six weeks after the alleged libel has come to the plaintiff's knowledge, given to the defendant notice in writing, specifying the matter complained of, which shall be served in the same manner as a statement of claim or by delivering it to a grown-up person at the chief office of the defendant. [page673]

[36] Section 7 of the Act states,

7. Subsection 5(1) and section 6 apply only to newspapers printed and published in Ontario and to broadcasts from a station in Ontario.

[37] Section 1(1) of the Act states,

1(1) . . .

"broadcasting" means the dissemination of writing, signs, signals, pictures and sounds of all kinds, intended to be received by the public either directly or through the medium of relay stations, by means of,
(a) any form of wireless radioelectric communication utilizing Hertzian waves, including radiotelegraph and radiotelephone, or
(b) cables, wires, fibre-optic linkages or laser beams, and "broadcast" has a corresponding meaning.

[38] The plaintiff has served the requisite notice pursuant to s. 5(1) of the Act (the "Notice of Libel") with respect to eight of the 14 postings referred to in the Statement of Claim and for none of the other postings or for any of the e-mails.

[39] Section 5(1) only applies to a libel in a newspaper or in a broadcast as defined in the Act and, by s. 7, to "broadcasts from a station in Ontario". The argument could be made, as it was in Warman v. Fromm, [2007] O.J. No. 4754 (S.C.J.), at paras. 71-92, that the failure to give notice is a complete bar to the plaintiff's claims for those postings and the e-mails not included in the Notice of Libel. This argument would submit that the alleged defamatory materials amount to a "broadcast" and that the broadcasts were from a station in Ontario.

[40] I conclude, however, that deficiencies in the Notice of Libel have no effect on the plaintiff's claims. "Broadcast"

[41] With respect to the issue of "broadcast", I agree with the reasoning of Métivier J. in Warman v. Fromm, where Internet postings and e-mails were also involved. I am also guided by the decision of the Ontario Court of Appeal in Weiss v. Sawyer (2002), 2002 CanLII 45064 (ON CA), 61 O.R. (3d) 526, [2002] O.J. No. 3570 (C.A.), at paras. 23-27 (referred to in Warman v. Fromm, at para. 88).

[42] In Weiss, the Court of Appeal examined the issue of the meaning of "broadcast" in the Act and particularly regarding the notice provisions of s. 5(1). There, the alleged libellous material had been published on a magazine's Web site as part of its written magazine content and on the Internet. The court turned to rules of statutory interpretation to provide assistance with the interpretation of the words "newspaper" and "broadcast" in s. 5(1). It said the following, at para. 25:
[page674]

The ordinary meaning rule of statutory interpretation articulated by Ruth Sullivan, in Driedger on the Construction of Statutes, 3rd ed. (Toronto: Butterworths, 1994) at p. 7 is helpful:
(1) It is presumed that the ordinary meaning of a legislative text is the intended or most appropriate meaning. In the absence of a reason to reject it, the ordinary meaning prevails.
(2) Even where the ordinary meaning of a legislative text appears to be clear, the courts must consider the purpose and scheme of the legislation, and the consequences of adopting this meaning. They must take into account all relevant indicators of legislative meaning.
(3) In light of these additional considerations, the court may adopt an interpretation in which the ordinary meaning is modified or rejected. That interpretation, however, must be plausible, that is, it must be one [that] . . . the words are reasonably capable of bearing.

[43] The court then held that as there had been a publication in a newspaper within the meaning of the notice provisions of s. 5(1), it was unnecessary, in light of this finding, to go on to consider whether the Internet publication fell within the requirements of that section. It also said, at para. 26,

There is simply no evidence on the record that the online publication of the [alleged libelous material] falls within the statutory definition of broadcast. . . The determination of this issue is better left to another day when the evidentiary record will permit the court to make an informed decision.

[44] In the present case, there is no evidentiary record before me regarding the meaning of "broadcast" in s. 5(1) and whether it applies to publications on the Internet and by e- mail or whether, even if these publications are "broadcasts", they are from a station in Ontario.

[45] Certainly, it would be easy enough to conclude that the section, according to its ordinary meaning, refers to newspapers (and by Weiss to newspapers re-published on the Internet) and to radio broadcasts regardless of their manner of transmission. However, to include within the scope of s. 5(1) the use of the Internet for publication of alleged defamatory material is more problematic. Métivier J. expressed this well in Warman v. Fromm when she said, at paras. 89 and 90:

At this time, an extremely broad application of the Notice provision of the Act's original purpose might not serve the legislation. The original purpose was to allow a newspaper to mitigate its damages by retracting or apologizing for words published as a mistake made in good faith.

Extending the Act's application to a medium where words can be instantaneously disseminated around the entire globe repeatedly and with no viable possibility of effective complete retraction requires further judicial examination. [page675]

[46] In addition, the defendant is deemed to have admitted the postings and the e-mails, has not raised any defence and has chosen to continue to send the postings and the e-mails even after receiving the Notice of Libel and the Statement of Claim. The result is that the defendant has received clear notice of the allegations against him and, notwithstanding his knowledge of these allegations, he has clearly chosen not to mitigate his damages.

"Broadcasts from a station in Ontario"

[47] Even if I am wrong on the issue of whether s. 5(1) of the Act applies to the postings and the e-mails, there is also the requirement by virtue of s. 7 of the Act that if these are "broadcasts" that they be from a station in Ontario. There is no evidence before me in this respect, other than the plaintiff's evidence that he believes the servers for the Internet sites involved are not located in Ontario but are, instead, in California, Italy and Germany.

[48] It appears to me, from my understanding of the ordinary meaning of s. 5(1) and of its original purpose together with the "station in Ontario" issue, that the postings and the e- mails are likely not included in the notice provisions of the Act. However, as was the case for the courts in Weiss and in Warman v. Fromm, I am unable to make an informed decision in this regard due to the insufficient evidentiary record before me on these issues.

[49] It is for these reasons that I conclude there is no proof that s. 5(1) of the Act is applicable, with the consequence that the plaintiff's action is unaffected by issues regarding notice.

[50] Even if I am in error in this respect, it is of no consequence to the plaintiff's claim in any event, given that the fifth posting and the ninth to the thirteenth postings referred to above were included in the Notice of Libel and are sufficient for the purpose of proceeding to consider the plaintiff's defamation claims. Liability

[51] I am satisfied on a balance of probabilities from the facts deemed admitted and from the further evidence at trial that each of the essential elements comprising the torts of defamation and assault has been proved as having been committed by the defendant. I do not find, however, that the plaintiff is able to recover damages for a tort of invasion of privacy.

Defamation

[52] In Botiuk v. Toronto Free Press Publications Ltd., 1995 CanLII 60 (SCC), [1995] 3 S.C.R. 3, [1995] S.C.J. No. 69, Cory J. said, at para. 62, [page676]

[A] publication which tends to lower a person in the estimation of right-thinking members of society, or to expose a person to hatred, contempt or ridicule, is defamatory and will attract liability . . . What is defamatory may be determined from the ordinary meaning of the published words themselves or from the surrounding circumstances.

[53] The tort of defamation consists of the two torts of libel and slander. The law of libel and slander protects an individual's reputation. Libel is any publication of defamatory material. The law presumes that the words are false unless and until the defendant proves the contrary. In order to succeed in his defamatory action, the plaintiff must establish each of the following three elements on a balance of probabilities: (1) the words are defamatory; (2) the words are published; (3) the plaintiff is the person defamed: Rainaldi, ed., Remedies in Tort, looseleaf (Toronto: Carswell, 2006), at pp. 6-20.

[54] With respect to the first element, the postings on the various Web sites and with the various Web site groups are clearly defamatory according to their ordinary meaning. They are calculated to be personally and professionally insulting and demeaning. They refer to the plaintiff as a dishonest man, liar, scumbag, pimp and disgusting maggot, to name a few. They falsely allege that the plaintiff is part of organized crime and financed by "mobs". They falsely allege that the plaintiff was convicted of child molestation. They attack the plaintiff's credibility and reputation as a lawyer. They significantly discredit his personal and professional reputation and they do so over and over again. They heap hatred, contempt and ridicule on the plaintiff and by their volume and wide dissemination, they seriously expose the plaintiff to hatred, contempt and ridicule from others. As the plaintiff testified at trial, to be falsely alleged to be a pedophile convicted of sexual assault against a young person is particularly hurtful.

[55] With respect to the second element, I have no difficulty concluding that the defamatory words are published. The Internet is a means of publication like no other, given its ability to instantaneously send words throughout the world to the millions who have access to computers. The defendant has caused defamatory words to be communicated to others by the postings and each time he has re-posted the same defamatory words in the postings, he has created a new publishing of these words.

[56] I also have no difficulty concluding that the third element has been established, in that the plaintiff was clearly the person being defamed. The defendant mentioned the plaintiff's name in all of the fourteen postings referred to above. In some of the postings, the defendant included links to a picture of the plaintiff. [page677]

[57] It is for these reasons I conclude that the defendant's postings have defamed the plaintiff.

Assault

[58] Assault is the intentional creation of the apprehension of imminent harmful or offensive contact. The tort of assault furnishes protection for the interest in freedom from fear of being physically interfered with. Damages are recoverable by someone who is made apprehensive of immediate physical contact, even though that conduct never actually occurs: Allen M. Linden and Bruce Feldthusen, Canadian Tort Law, 8th ed. (Markham, Ont.: LexisNexis, 2006), at p. 46.

[59] Conduct that intentionally arouses apprehension of an imminent battery (physical contact) constitutes an assault. Frightening or threatening someone, however, does not constitute an assault unless the event feared is imminent:
Canadian Tort Law, supra, at p. 47.

[60] I am satisfied that the plaintiff is reasonably apprehensive of imminent physical contact as a result of the postings and the e-mails.

[61] By way of example, in the first posting, the defendant invited readers to let the plaintiff "meet his just fate -- execution at the hands of a people's government". In the second posting through to the fourteenth posting and continuing to the present time, the defendant urged readers to "pay him a visit" and included the plaintiff's residence address and phone numbers. The sixth posting encouraged the readers "to email the co-op and complain about their resident (he may get kicked out if they get enough complaints)". The plaintiff testified that the management of his co-operative where he lived did receive calls. As a consequence, he moved to a different address at the end of October 2007. The seventh posting referred to the plaintiff as "a dead Jew walkin'". The fourteenth posting concluded its message with, "I AM GOD AND I HAVE A RUGER P-90 AND IT'S BULLETS HAVE YOUR NAME ON THEM FAGBOY WARMAN". One of the e-mails in March 2008 said, "Your day of reckoning is coming, you little homo creep!"

[62] The postings and the e-mails have continued for over two years. They have persistently expressed hatred and anger and have called on others to act against the plaintiff, to try to get him evicted and to make him a target of violence. They are not general threats. They are threatening and intimidating and by virtue of their repetitiveness, their detail regarding the plaintiff's whereabouts and their level of malevolence, they are more than mere empty threats and insults. They are vicious and serious and [page678] are to be taken seriously. They have made the plaintiff apprehensive of imminent physical harm and reasonably so, particularly in the context of the wide publication of the postings on the Internet and the very real possibility that someone will, as they have in the past by contacts with the management of the plaintiff's residence, act on the defendant's repeated invitations to others to find the plaintiff and inflict serious physical harm on him.

[63] It is for these reasons that I find the plaintiff is entitled to recover damages for the defendant's assault against him.

Invasion of privacy

[64] In addition to the defamatory nature of the postings causing injury to the plaintiff's reputation and in addition to the assaultive nature of both the postings and the e-mails causing him to fear imminent physical harm, the plaintiff also claims damages for invasion of privacy because of the postings.

[65] Since 2004 and with his extensive human rights work relating to hate propaganda on the Internet and the attention that this work has garnered, the plaintiff has attempted to keep his home address private. He has had his address removed from telephone listings and, since 2007, he has maintained an unlisted telephone number. By their publication of the plaintiff's personal information including an aerial photograph and map to locate the plaintiff's residence, the postings certainly do invade the plaintiff's privacy.

[66] I am cognizant, as stated by Aston J. in Nitsopoulos v. Wong, 2008 CanLII 45407 (ON SC), [2008] O.J. No. 3498, 169 A.C.W.S. (3d) 74 (S.C.J.), at paras. 8-16 and 19, of there being a difference in judicial opinion as to whether there exists a common right to privacy in Canada. Even if I were to find, as Aston J. did in Wong, that the law is not settled in Ontario and that the law of libel and slander "should not act to bludgeon other meritorious causes of action where they can stand on their own" (at para. 16), the damages would have to flow from harm that is not subsumed by the torts of defamation and assault.

[67] I do not find that the damages claimed by the plaintiff for the tort of invasion of privacy are distinct from those flowing from the torts of defamation and assault.

[68] In Wong, there was separate conduct that could have been the source of the tort of invasion of privacy, separate from the libellous words.

[69] In the present case, there is no tortious conduct amounting to an invasion of privacy that is separate from the conduct making the defendant liable for damages for defamation and assault. The result is that while the defendant's conduct amounting to defamation and [page679] assault have caused injury to the plaintiff's reputation and to his right to "mental security" (Canadian Tort Law, supra, at p. 49) and the plaintiff is able to recover damages for these injuries, there is no separate injury to any common-law right to privacy that the plaintiff may enjoy. In particular, the plaintiff is entitled to recover damages for the defendant's assault against him for the same reason that he seeks damages for breach of his right to privacy, namely, because of the postings that publish his personal information and cause him apprehension of imminent physical harm.

[70] In other words, the conduct causing the harm is recoverable in damages for defamation and assault and there is no separate tortious conduct resulting in separate harm, in my view, that is recoverable by the plaintiff for a tort of invasion of privacy

[71] Another of the cases relied on by the plaintiff regarding the issue of there being an actionable tort available to the plaintiff is also distinguishable. In Griffin v. Sullivan, [2008] B.C.J. No. 1333, 2008 BCSC 827, the claim for breach of privacy was based on a statutorily actionable tort created by s. 1 of the Privacy Act, R.S.B.C. 1996, c. 373 of British Columbia, making it a tort "for a person, willfully and without a claim of right, to violate the privacy of another". There is no similar claim by the plaintiff in the present case.

[72] It is for these reasons that I do not find the plaintiff has established he is entitled to damages for a tort of invasion of privacy. Damages

[73] I find the plaintiff is entitled to general damages for defamation and assault by the defendant. He also claims aggravated and punitive damages.

[74] In Hill v. Church of Scientology of Toronto (1995), 1995 CanLII 59 (SCC), 24 O.R. (3d) 865, [1995] 2 S.C.R. 1130, [1995] S.C.J. No. 64, the Supreme Court of Canada stated, at para. 187,

The assessment of damages in a libel case flows from a particular confluence of the following elements: the nature and circumstances of the publication of the libel, the nature and position of the victim of the libel, the possible effects of the libel statement upon the life of the plaintiff, and the actions and motivations of the defendants.

[75] The defendant has attacked the plaintiff's professional and his personal reputation. He has been given the opportunity to retract his comments, to apologize, to stop making his defamatory statements and he has refused to do so. The postings have continued. The e-mails were initiated in addition to the postings. Both have continued. [page680]

[76] The defendant's comments in the postings and in the e- mails are, I agree, particularly vicious, profane and extreme, as summarized before.

[77] Additionally, due to the nature of the Internet and as commented upon in Barrick Gold Corp. v. Lopehandia (2004), 2004 CanLII 12938 (ON CA), 71 O.R. (3d) 416, [2004] O.J. No. 2329 (C.A.), at paras. 28-35, the postings are instantaneous, omnipresent, borderless and far-reaching.

[78] As recognized in Warman v. Fromm, at para. 113, the plaintiff is a lawyer and his professional reputation for integrity and trustworthiness is of paramount importance to him now and in the future.

[79] The postings and the e-mails are also malicious. I find that the defendant has been motivated by malice in making them:
Hill v. Scientology, at para. 145. The postings have been made dishonestly and in knowing or reckless disregard of the truth. Those that state the plaintiff is a convicted pedophile and a gangster and organized crime figure are glaring examples of this deliberate malice. Similarly, after the defendant was served with the Statement of Claim, he chose to contact the plaintiff directly through the e-mails and to continue his slurs and threats.

[80] I find the plaintiff is entitled, therefore, in addition to general damages for defamation and assault, to aggravated damages because of this element of malice that has served to cause additional injury and distress in all of the circumstances: Hill v. Scientology, at paras. 188-90.

[81] There is also the plaintiff's claim for punitive damages. As stated in Whiten v. Pilot Insurance Co., 2002 SCC 18 (CanLII), [2002] 1 S.C.R. 595, [2002] S.C.J. No. 19, at para. 94, the objectives of punitive damages are retribution, deterrence and denunciation of high-handed, malicious, arbitrary or highly reprehensible misconduct that departs to a marked degree from ordinary standards of decent behaviour, and punitive damages are only exceptionally awarded where other penalties incurred do not adequately reflect these objectives.

[82] The defendant's misconduct can be characterized as highly reprehensible misconduct, as referred to in Whiten. The issue is whether the other penalties incurred, including the awarding of general damages, aggravated damages and injunctive relief, adequately reflect the objectives of retribution, deterrence and denunciation. In my view, in this case they do and, in any event, with damages having to be capped at $50,000, as referred to below, the issue becomes somewhat academic.

[83] I do not, therefore, award punitive damages for defamation and assault. [page681] Quantum of Damages

[84] I accept the plaintiff's submission that he has suffered damages in an amount exceeding the $50,000 he has claimed and that he has waived the excess so as to be able to proceed under the Simplified Rules.

[85] He is, as stated before, entitled to general and aggravated damages for defamation and assault. He submits that an award in the total amount of $175,000 is appropriate in all of the circumstances

[86] He relies on relevant case law where damage awards have ranged between $125,000 and $875,000, as follows: $125,000:
Finocchio v. Kurtesi, [2007] O.J. No. 5581, 2007 WL 977444, 2007 CarswellOnt 1895 (S.C.J.); Barrick Gold, supra; $175,000:
Griffin, supra; $875,000: Southam Inc. v. Chelekis, [1998] B.C.J. No. 848, 79 A.C.W.S. (3d) 66 (S.C.), at paras. 59-74, upheld on appeal to the British Columbia Court of Appeal by two of the defendants with respect to the trial court's award of $250,000 against them [2000] B.C.J. No. 314, 2000 BCCA 112; $400,000: Reichmann v. Berlin, [2002] O.J. No. 2732, [2002] O.T.C. 464 (S.C.J.).

[87] In Warman v. Fromm, the plaintiff was awarded a total of $30,000 in damages for general and aggravated damages resulting from defamatory postings. In the present case, the damages are also for assault and the very justifiable apprehension of imminent physical harm.

[88] I accept that a total amount of $175,000 would be the appropriate quantum of general and aggravated damages to the plaintiff for defamation and assault. I would award this level of damages more than, for example, was awarded in Warman v. Fromm, because of the increased seriousness of the allegations in the present case, the frightening threats that have been made, the danger they have created and the extreme malice that has been demonstrated.

[89] With the plaintiff's waiver of the excess over $175,000, I award damages to the plaintiff in the total amount of $50,000, comprised of $20,000 as general damages for defamation, $10,000 as aggravated damages for defamation, $15,000 as general damages for assault and $5,000 as aggravated damages for assault. Injunctive Relief

[90] Injunctive relief is appropriate. The defendant has attorned to the jurisdiction of this court. As submitted at paras. 108-117 of the plaintiff's written submissions, I agree that there is no bar to this court ordering injunctive relief against the defendant and that such relief is necessary in light of the defendant's conduct over the last two years. [page682]

[91] For injunctive relief to be effective, I also agree it needs to be broadly worded, given the defendant's propensity to use many different identities, nicknames, Internet addresses and anonymous re-mailers whereby he is able to post or send a message on the Internet that cannot be traced back to the original sender.

[92] I order, therefore, that the defendant be subject to the injunctive relief as requested in the plaintiff's written submissions, at pp. 30-31, subparas. 119(c) -- (f). Pre-and Post-Judgment Interest and Costs

[93] The other relief of pre-and post-judgment interest as well as costs on a substantial indemnity basis is also ordered, as requested by the plaintiff.

[94] The plaintiff is to forward his bill of costs to me for the fixing of their quantum as well as a draft judgment in accordance with these reasons.

Action allowed.