As I stated in a previous post
Jane Doe 464533 v. X, courts must always adapt the common law
to meet the needs of the digital age. Justice Faieta's decision
in Hardev Kumar v. Vinod Khurana, 2015 ONSC 7858 is an
example of this trend. Unlike the case that I profiled previously,
where the court recognized a new tort to compensate the victim of
so-called “revenge porn”, the court in Kumar v.
Khurana simply applied an age-old tort, defamation, with
special sensitivity to the realities of internet communication.
In September 2013, the Defendant, Mr. Khurana, posted statements
on the Plaintiff's Facebook page that suggested that the
Plaintiff was an impecunious extortionist who needed to get money
from his late father's estate. In April 2014, the Defendant
sent two private messages to the Plaintiff's daughter where he
expanded on the claims he made in September 2013.
The Plaintiff explained that the Defendant's allegations
caused him significant mental distress. As a result, he suffered a
loss of self-esteem and felt that his standing in the community was
diminished. He sought psychological treatment for these issues.
Justice Faieta cited the case of Grant v. Torstar
Corp., 2009 SCC 61, for the three part test for
The impugned words must be defamatory, in the sense that they
would tend to lower the plaintiff's reputation in the eyes of a
The words in fact referred to the plaintiff; and
The words were published, meaning that they were communicated
to at least one person other than the plaintiff.
The part of this judgment that I find most interesting is
Justice Faieta's focus on the mode of communication, the
internet. Justice Faieta makes several remarks about the unique
harm that can come from misuse of the internet. For instance,
Justice Faieta cited the case of Barrick Gold Corporation v.
Lopehandia et al., (2004), 71 O.R. (3d) 416 (C.A.) for the
Communication via the Internet is instantaneous, seamless,
interactive, blunt, borderless and far-reaching. It is also
impersonal, and the anonymous nature of such communications may
itself create a greater risk that the defamatory remarks are
...Internet defamation is distinguished from its less pervasive
cousins, in terms of its potential to damage the reputation of
individuals and corporations, by the features described above,
especially its interactive nature, its potential for being taken at
face value, and its absolute and immediate worldwide ubiquity and
accessibility. The mode and extent of publication is therefore a
particularly significant consideration in assessing damages in
Internet defamation cases.
Justice Faieta awarded $15,000 in general damages and $15,000 in
aggravated damages due to the anguish the Plaintiff suffered.
I note that Mr. Khurana did not defend this action.
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