Law Times

Law Times • February 26, 2018 Page 5 www.lawtimesnews.com OCA upholds $700,000 award in defamation case BY ALEX ROBINSON Law Times T he Ontario Court of Appeal has upheld $700,000 in damages in what lawyers say is an important case for internet defa- mation law. In Rutman v. Rabinowitz, two businessmen, Moishe Berg- man and Saul Rabinowitz, ap- pealed various parts of an On- tario Superior Court judgment that found they were liable for an internet campaign that had defamed a former businesses as- sociate, Ronald Rutman. While Rabinowitz admitted liability for the defamatory state- ments at trial, he appealed the damages awards, arguing they were inordinately high. Bergman appealed a find- ing of joint and several liability against him for the defamatory statements. The Court of Appeal's de- cision dismissing the appeals found that the "pernicious ef- fects" of internet defamation dis- tinguishes it from defamation in other mediums when it comes to awarding damages. Lawyers say the decision to uphold such a large compensa- tory damages award calls out for specific condemnation for inter- net defamation. "It's a recognition of not only how targeted and malicious the campaign was in this particular case but also the nature of the medium used and how internet defamation — given its imme- diacy, its permanency and how quickly it spreads — can be a particularly effective form for somebody who really wants to cause damage to someone's rep- utation," says Kevin O'Brien, a partner at Osler Hoskin & Har- court LLP, who was not involved in the case. The internet campaign start- ed in 2008 after a dispute con- cerning control of a business Rutman owned and for which the two defendants worked. The campaign involved anonymous emails Rabinowitz sent to Rutman's business part- ners and associates that included defamatory statements he was being investigated for money laundering and tax fraud, ac- cording to the decision. Rabinowitz also posted nega- tive reviews about Rutman on an internet bulletin board that described the plaintiff as "a thief " who "deserves to be be- hind bars." The defamatory activities were "unrelenting, insidious and reprehensible" and stretched out over a "lengthy period," the deci- sion said. One of the issues in the case from a damages perspective was that the plaintiff had admitted at trial that he was not aware of specific injury to his reputation in the community. The defendants argued that the damages should therefore be on the lower end of the scale. The Court of Appeal, how- ever, rejected this argument and found that the inability to point to a specific harm is not an ac- knowledgement that one did not exist. The court also noted that while the traditional factors for determining defamation ap- plied, they have to be examined in the light of the "internet con- text" where the offending state- ments could be disseminated widely and viewed instantly by anyone. "For the most part, you can't put a dollar number on how your reputation's been harmed," says O'Brien. Matthew Sammon, one of the lawyers representing Rutman in the appeal, says the decision reaffirmed that it isn't neces- sary for a plaintiff to prove spe- cific injury to reputation when it comes to assessing damages for internet defamation. "The whole issue with in- ternet defamation is you don't know often the scope of the dis- semination of that communica- tion," says Sammon, a partner with Lenczner Slaght Royce Smith Griffin LLP. "You don't know who it might have affected, what business you might have lost or who might think differently about you, be- cause you don't know who has seen the posts." Another central issue in the appeal was whether Bergman, who claimed he had no involve- ment in the defamatory activity, was liable. Bergman argued that joint liability in defamation requires either approval or publication of the defamatory statements. Bergman said that while he knew of Rabinowitz's plan and did nothing to stop it, he was un- der no duty to do so. The court upheld the trial judge's finding that it was not necessary to find Bergman was an active participant in the defa- mation to find he was liable. The court found Bergman's participation in the general plan to defame Rutman, as well as his facilitation of the behaviour, was enough to find him liable, even if he wasn't involved in the de- famatory activity from the very outset. Sammon says the decision defines the law in a way that will be helpful for litigators looking to establish concerted action li- ability. "It confirms that, in connec- tion with defamatory activity, you don't have to directly partic- ipate in making the defamatory statements to be liable for them," says Sammon. The case is help- ful because it summarizes and reaffirms a number of trends in the law, he says. Lawyer John Adair, who rep- resented Rabinowitz in the ap- peal, declined to comment on the decision. Helen Daley, one of the lawyers representing Moishe Bergman and Artcraft Com- pany Inc., also did not respond to requests for comment. LT NEWS Matthew Sammon says the 'whole issue with internet defamation is you don't know often the scope of the dissemination of that communication.' Federation of Law Societies of Canada Please join us for the 30th Anniversary of the National Family Law Program Vancouver British Columbia July 9 – 12 2018 On Line Registration is Now Open or For more detailed program information including registration instructions and fees, link to the Marriott parq Hotel room block and ongoing program updates visit: then click on the link to the National Family Law Program Space is limited. If you are planning to attend please register for the program and book the hotel early to avoid disappointment. All questions about the program can be directed to Heather Walker, Program Coordinator e-mail: nationalfamilylawprogram@sympatico.ca FederationLaw_LT_Feb26_18.indd 1 2018-02-20 10:29 AM

• Cover