Question Two

Read the fact pattern below and answer the following questions in paragraph format.

Fahad had a student loan that was in arrears. Collection of the loan had been transferred from the original lender to Kneecap Collections Inc., a collection agency. When Kneecap demanded payment, Fahad questioned the amount that was being claimed, which was much larger than the amount of the original loan. Kneecap did not give any explanation and insisted on immediate payment. Fahad said that he would not pay any amount until Kneecap provided an explanation for the amount owing.

Shortly after this, Kneecap began to harass Fahad. They made violent threats to Fahad and repeatedly called his employer, making false statements about Fahad. They told his employer that Fahad had defrauded the employer and that he was secretly working part-time for a competitor. As a result, even though Fahad said that Kneecap was not being truthful, he was fired by his employer.

What claims might Fahad have against Kneecap? Are there any defences available to Kneecap? You are the judge. Read the case "Tran v. Financial Debt Recovery Ltd."

After reading "Tran" and other materials, make a decision and explain how you reached your decision. Do not address damages in detail.

Cases:

Tran v. Financial Debt Recovery Ltd., 2000

Warman v. Grosvenor., 2008

Providing a point-form summary of each of the cases

1) CASE 1 - Warman v. Grosvenor

[1] RATUSHNY J.: --Theplaintiff seeks to stopthedefendant's two-year "campaign of terror" against him, achieved through postings ontheInternet and personal e-mails.

[2]Theplaintiff is a lawyer who works fortheGovernment of Canada and resides in Ottawa, Ontario. He is involved in extensive human rights work relating to hate propaganda ontheInternet.

[3]Thedefendant resides in Edmonton, Alberta.

[4]Theplaintiff requests general, aggravated and punitive damages inthetotal amount of $50,000 fordefamation, assault and invasion of privacy. He also requests a complete retraction ofthedefendant's defamatory comments and a permanent injunction.

Procedural Background

[5]TheStatement of Claim was issued on January 14, 2008 and personally served onthedefendant on January 15, 2008.

[6]Thedefendant 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]Theplaintiff next brought a motion for judgment pursuant torule 19.05oftheRules 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 orderedtheaction proceed to trial and oral evidence be presented.

[8]Theplaintiff testified at trial. He introduced additional evidence to that contained in his affidavit dated June 30, 2008 (the"affidavit") and intheoriginal motion record. In his testimony, he reviewedthecontents of various Internet postings and personal e-mails. He explained, as he had already stated intheaffidavit, why he believedthedefendant wastheauthor of allthepostings ontheInternet entered into evidence at trial (the"postings") andthee-mails sent directly to him, also as admitted as evidence at trial (the"e- mails"). He spoke oftheimportance to him of his reputation as a lawyer and ofthehorror and fear he experiences because of these postings and e-mails. He saidthedefendant has [page667] continued his campaign against him up tothepresent time. He describedthedefendant's comments as vicious, violent and malevolent. He said he has never, except through his counsel in this action, made any contact whatsoever withthedefendant. Deemed Admission of Facts

[9] Becausethedefendant has been noted in default,theRulesdeem him to have admittedthetruth of all allegations of fact made intheStatement of Claim:rule 19.02(1).

[10] However,theRulesalso make it clear thattheplaintiff is not entitled to judgment merely becausethefacts alleged intheStatement of Claim are deemed to be admitted, unless those facts entitletheplaintiff to judgment:rule 19.06.

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

[12] I did have some initial concerns as tothereliability oftheplaintiff's identification ofthedefendant astheauthor ofthepostings andthee-mails, notwithstandingthedeemed admission ofthetruth oftheallegations by virtue oftheoperation oftheRules, 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 thattheperson who was served withtheStatement of Claim wasthesame person who wastheauthor ofthepostings andthee- mails.

[13] My review oftheevidence satisfies me, however, thattheplaintiff has provedthedefendant to betheauthor ofthepostings andthee-mails. I accepttheplaintiff's analysis oftheissue of identification contained in paras. 11-18 oftheaffidavit, as supplemented by his evidence at trial.

[14]Thefollowing 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 wasthesame address used to servetheStatement of Claim onthedefendant withthesame name.Thedefendant ofthesame name responded, giving this same address in his Notice of Intent to Defend.Thee-mails began on January 16, 2008, which wastheday aftertheStatement of [page668] Claim had been served onthedefendant.Thefirst ofthee-mails repeated, inthesame words,theinvitation to others to harmtheplaintiff andthelinks totheplaintiff's former home address combined with an aerial photograph, as had been contained in some oftheprevious postings.Thefurther e-mails have continued some ofthesame patterns exhibited bythepostings in terms of their style, content and obsessions. Summary oftheAdmitted Facts

[15]Thepostings bythedefendant began, as far astheplaintiff is aware, inthespring of 2006 and they continue to be made atthepresent time.Thepostings have been published throughout Canada andtheworld by way of Google Web site groups, Mailgate website groups and NNTP2HTTO.com Web site groups.Theplaintiff understandstheservers for these website groups are in California U.S.A, Italy and Germany respectively.

[16]Thefirst posting fromthedefendant, as referred to intheStatement of Claim, is dated August 25, 2006. It containsthefollowing words (they are an excerpt only) that were then posted ontheInternet bythedefendant 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 atthehands of a people's government.

[17]Thesecond posting fromthedefendant, as referred to intheStatement of Claim, is dated September 7, 2006. It containsthefollowing words (they are an excerpt only) that were then posted ontheInternet bythedefendant 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 againsttheCanadian people, we don't need Zionazis thought enforcement ontheinternet when you bastards control most ofthemedia. You just create backlash that lets people seetheZionazis 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 ofthecommunist co-op that Richard Warman calls home.

[18]Thethird posting fromthedefendant, as referred to intheStatement of Claim, is dated October 3, 2006. It containsthesame words referred to intheabove excerpt as were inthesecond posting.Thedefendant then posted these words ontheInternet at least 18 times.

[19]Thefourth posting fromthedefendant, as referred to intheStatement of Claim, is dated December 29, 2006. It contains [page669]thefollowing words (they are an excerpt only) that were then posted ontheInternet bythedefendant at least 14 times:

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

You just create backlash that lets people seetheZionazis 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 ofthecommunist co-op that Richard Warman calls home.

[20]Thefifth posting fromthedefendant, as referred to intheStatement of Claim, is dated November 10, 2007. It containsthefollowing words (they are an excerpt only) that were then posted ontheInternet bythedefendant at least six times:

"Canada Awake!TheTime 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 thattheCanadian government will not protect.

In fact,theCanadian government is organizing crime. This same Jew attorney, Richard Warman, hired a bus and organizedthemob 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 undertheprotection oftheJews.

[21]Thesixth posting fromthedefendant, as referred to intheStatement of Claim, is dated September 22, 2007. It containsthefollowing words (they are an excerpt only) that were then posted ontheInternet bythedefendant at least once:

"Faggoty-looking lawyer crusades AGAINST free speech"

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

[22]Thesixth posting then goes on to givetheplaintiff's correct residential address atthetime, his phone number, aerial photos and a map of how to get to his residence, andthecontact details forthemanagement of that co-op residence, saying "Encourage your readers to emailtheco-op and complain about their resident (he may get kicked out if they get enough complaints)".

[23]Theseventh posting fromthedefendant, as referred to intheStatement of Claim, is dated September 23, 2007. It containsthefollowing words (they are an excerpt only) that were then posted ontheInternet bythedefendant 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 Google search on his name. And then pay him a visit . . .

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

[24]Theeighth posting fromthedefendant, as referred to intheStatement of Claim, is dated September 19, 2007. It containsthewords referred to above inthefourth posting.Thedefendant then posted these words ontheInternet at least eight more times.

[25]Theninth posting fromthedefendant, as referred to intheStatement of Claim, is dated October 12, 2007. It containsthefollowing words (they are an excerpt only) that were then posted ontheInternet bythedefendant at least 200 times:

"Why are ZYDs/Jews So Hated Worldwide?"

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

[26]Thetenth posting fromthedefendant, as referred to intheStatement of Claim, is dated October 15, 2007. It containsthewords referred to above intheseventh posting.Thedefendant then posted these words ontheInternet at least eight more times.

[27]Theeleventh posting fromthedefendant, as referred to intheStatement of Claim, is dated October 19, 2007. It containsthefollowing words (they are an excerpt only) that were then posted ontheInternet bythedefendant at least once:

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

[28]Thetwelfth posting fromthedefendant, as referred to intheStatement of Claim, is dated November 8, 2007. It containsthefollowing words (they are an excerpt only) that were then posted ontheInternet bythedefendant 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 earstheprototypical Jewish extremist mind with its paranoia, its almost inbred disgust fortheGentile and his culture, its power-mad delusion of dog-like control overthemasses, its "inalienable right" not to be offended, its reflexive and intractable totalitarianism (theBolshevik brain) andtheborderline personality disorder of so many Jewish power-players inthezealous Zionist crime syndicate . . .

How does Dick Warman, either crypto-Jew or Shoddy Goy, playthepimp for Big Jewry so effectively? Simple. He is part oftheGovernment/Jewry Complex . . .

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

[29]Thetwelfth posting, as inthesixth posting referred to above, liststheplaintiff's address and urges people to contact that address's management personnel.

[30]Thethirteenth posting fromthedefendant, as referred to intheStatement of Claim, is dated November 9, 2007. It containsthefollowing words (they are an excerpt only) that were then posted ontheInternet bythedefendant at least three times:

"Female Activist Faces 'Thought Crime' Charges"

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

[31]Thefourteenth posting fromthedefendant,thelast referred to intheStatement of Claim, is dated January 7, 2008. It containsthefollowing words (they are an excerpt only) that were then posted ontheInternet bythedefendant 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 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.

Thelove frolic occurred mainly attheComfort Inn,therelationship lasted ten months betweenthecouple. [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."

Thehotel 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]Thepostings continued in this vein aftertheservice oftheStatement of Claim onthedefendant on January 15, 2008, as reviewed bytheplaintiff at trial. Most ofthefurther postings duplicated material fromthepostings referred to intheStatement of Claim.

[33]Thee-mails are also repetitive ofthesame themes.Theplaintiff receivedthefirst ofthee-mails on January 16, 2008,theday aftertheservice oftheStatement of Claim onthedefendant. On January 19, 2008, six identical e-mails were sent totheplaintiff with onlythe"Subject" line changed. Since January 2008,theplaintiff has received over 60 e-mails fromthedefendant. In March 2008,thefollowing threat was included bythedefendant 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]Thedefendant has continuedthepostings andthee- mails, notwithstandingtheplaintiff's service on him in November 2007 of a Notice of Libel pursuant totheLibel andSlanderAct, R.S.O. 1990, c. L.12(the"Act") regarding some ofthepostings and also notwithstanding, as mentioned before,theservice on him oftheStatement of Claim andtheresponse from him by way of a Notice of Intent to Defend.Thepostings andthee-mails continue atthepresent time.ThePostings have never been removed or retracted andthedefendant has never apologized totheplaintiff forthepostings andthee-mails. Notice Pursuant totheLibel andSlanderAct

[35]Section 5(1)oftheActstates,

5(1) No action for libel in a newspaper or in a broadcast lies unlesstheplaintiff has, within six weeks afterthealleged libel has come totheplaintiff's knowledge, given tothedefendant notice in writing, specifyingthematter complained of, which shall be served inthesame manner as a statement of claim or by delivering it to a grown-up person atthechief office ofthedefendant. [page673]

[36]Section 7oftheActstates,

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

[37]Section 1(1)oftheActstates,

1(1) . . .

"broadcasting" meansthedissemination of writing, signs, signals, pictures and sounds of all kinds, intended to be received bythepublic either directly or throughthemedium 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]Theplaintiff has servedtherequisite notice pursuant tos. 5(1)oftheAct(the"Notice of Libel") with respect to eight ofthe14 postings referred to intheStatement of Claim and for none oftheother postings or for any ofthee-mails.

[39]Section 5(1)only applies to a libel in a newspaper or in a broadcast as defined intheActand, bys. 7, to "broadcasts from a station in Ontario".Theargument could be made, as it was in Warman v. Fromm,[2007] O.J. No. 4754 (S.C.J.), at paras. 71-92, thatthefailure to give notice is a complete bar totheplaintiff's claims for those postings andthee-mails not included intheNotice of Libel. This argument would submit thatthealleged defamatory materials amount to a "broadcast" and thatthebroadcasts were from a station in Ontario.

[40] I conclude, however, that deficiencies intheNotice of Libel have no effect ontheplaintiff's claims. "Broadcast"

[41] With respect totheissue of "broadcast", I agree withthereasoning of Mtivier J. in Warman v. Fromm, where Internet postings and e-mails were also involved. I am also guided bythedecision oftheOntario Court of Appeal inWeiss 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]InWeiss,theCourt of Appeal examinedtheissue ofthemeaning of "broadcast" intheActand particularly regardingthenotice provisions ofs. 5(1). There,thealleged libellous material had been published on a magazine's Web site as part of its written magazine content and ontheInternet.Thecourt turned to rules of statutory interpretation to provide assistance withtheinterpretation ofthewords "newspaper" and "broadcast" ins. 5(1). It saidthefollowing, at para. 25: [page674]

Theordinary meaning rule of statutory interpretationarticulated by RuthSullivan, in Driedger ontheConstruction of Statutes, 3rd ed. (Toronto: Butterworths, 1994) at p. 7 is helpful: (1) It is presumed thattheordinary meaning of a legislative text istheintended or most appropriate meaning. Intheabsence of a reason to reject it,theordinary meaning prevails. (2) Even wheretheordinary meaning of a legislative text appears to be clear,thecourts must considerthepurpose and scheme ofthelegislation, andtheconsequences of adopting this meaning. They must take into account all relevant indicators of legislative meaning. (3) In light of these additional considerations,thecourt may adopt an interpretation in whichtheordinary meaning is modified or rejected. That interpretation, however, must be plausible, that is, it must be one [that] . . .thewords are reasonably capable of bearing.

[43]Thecourt then held that as there had been a publication in a newspaper withinthemeaning ofthenotice provisions ofs. 5(1), it was unnecessary, in light of this finding, to go on to consider whethertheInternet publication fell withintherequirements of that section. It also said, at para. 26,

There is simply no evidence ontherecord thattheonline publication ofthe[alleged libelous material] falls withinthestatutory definition of broadcast. . .Thedetermination of this issue is better left to another day whentheevidentiary record will permitthecourt to make an informed decision.

[44] Inthepresent case, there is no evidentiary record before me regardingthemeaning of "broadcast" ins. 5(1)and whether it applies to publications ontheInternet 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 thatthesection, according to its ordinary meaning, refers to newspapers (and by Weiss to newspapers re-published ontheInternet) and to radio broadcasts regardless of their manner of transmission. However, to include withinthescope ofs. 5(1)theuse oftheInternet for publication of alleged defamatory material is more problematic. Mtivier J. expressed this well in Warman v. Fromm when she said, at paras. 89 and 90:

At this time, an extremely broad application oftheNotice provision oftheAct's original purpose might not servethelegislation.Theoriginal purpose was to allow a newspaper to mitigate its damages by retracting or apologizing for words published as a mistake made in good faith.

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

[46] In addition,thedefendant is deemed to have admittedthepostings andthee-mails, has not raised any defence and has chosen to continue to sendthepostings andthee-mails even after receivingtheNotice of Libel andtheStatement of Claim.Theresult is thatthedefendant has received clear notice oftheallegations 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 ontheissue of whethers. 5(1)oftheActapplies tothepostings andthee-mails, there is alsotherequirement by virtue ofs. 7oftheActthat if these are "broadcasts" that they be from a station in Ontario. There is no evidence before me in this respect, other thantheplaintiff's evidence that he believestheservers fortheInternet sites involved are not located in Ontario but are, instead, in California, Italy and Germany.

[48] It appears to me, from my understanding oftheordinary meaning ofs. 5(1)and of its original purpose together withthe"station in Ontario" issue, thatthepostings andthee- mails are likely not included inthenotice provisions oftheAct. However, as wasthecase forthecourtsinWeissand in Warman v. Fromm, I am unable to make an informed decision in this regard due totheinsufficient evidentiary record before me on these issues.

[49] It is for these reasons that I conclude there is no proof thats. 5(1)oftheActis applicable, withtheconsequence thattheplaintiff's action is unaffected by issues regarding notice.

[50] Even if I am in error in this respect, it is of no consequence totheplaintiff's claim in any event, given thatthefifth posting andtheninth tothethirteenth postings referred to above were included intheNotice of Libel and are sufficient forthepurpose of proceeding to considertheplaintiff'sdefamationclaims. Liability

[51] I am satisfied on a balance of probabilities fromthefacts deemed admitted and fromthefurther evidence at trial that each oftheessential elements comprisingthetorts ofdefamationand assault has been proved as having been committed bythedefendant. I do not find, however, thattheplaintiff is able to recover damages for a tort of invasion of privacy.

Defamation

[52]InBotiuk 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 intheestimation 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 fromtheordinary meaning ofthepublished words themselves or fromthesurrounding circumstances.

[53]Thetort ofdefamationconsists ofthetwo torts of libel andslander.Thelaw of libel andslanderprotects an individual's reputation. Libel is any publication of defamatory material.Thelaw presumes thatthewords are false unless and untilthedefendant provesthecontrary. In order to succeed in his defamatory action,theplaintiff must establish each ofthefollowing three elements on a balance of probabilities: (1)thewords are defamatory; (2)thewords are published; (3)theplaintiff isthepersondefamed: Rainaldi, ed., Remedies in Tort, looseleaf (Toronto: Carswell, 2006), at pp. 6-20.

[54] With respect tothefirst element,thepostings onthevarious Web sites and withthevarious Web site groups are clearly defamatory according to their ordinary meaning. They are calculated to be personally and professionally insulting and demeaning. They refer totheplaintiff as a dishonest man, liar, scumbag, pimp and disgusting maggot, to name a few. They falsely allege thattheplaintiff is part of organized crime and financed by "mobs". They falsely allege thattheplaintiff was convicted of child molestation. They attacktheplaintiff'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 ontheplaintiff and by their volume and wide dissemination, they seriously exposetheplaintiff to hatred, contempt and ridicule from others. Astheplaintiff 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 tothesecond element, I have no difficulty concluding thatthedefamatory words are published.TheInternet is a means of publication like no other, given its ability to instantaneously send words throughouttheworld tothemillions who have access to computers.Thedefendant has caused defamatory words to be communicated to others bythepostings and each time he has re-postedthesame defamatory words inthepostings, he has created a new publishing of these words.

[56] I also have no difficulty concluding thatthethird element has been established, in thattheplaintiff was clearlytheperson beingdefamed.Thedefendant mentionedtheplaintiff's name in all ofthefourteen postings referred to above. In some ofthepostings,thedefendant included links to a picture oftheplaintiff. [page677]

[57] It is for these reasons I conclude thatthedefendant's postings havedefamedtheplaintiff.

Assault

[58] Assault istheintentional creation oftheapprehension of imminent harmful or offensive contact.Thetort of assaultfurnishes protection fortheinterest 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 unlesstheevent feared is imminent: Canadian Tort Law, supra, at p. 47.

[60] I am satisfied thattheplaintiff is reasonably apprehensive of imminent physical contact as a result ofthepostings andthee-mails.

[61] By way of example, inthefirst posting,thedefendant invited readers to lettheplaintiff "meet his just fate -- execution atthehands of a people's government". Inthesecond posting through tothefourteenth posting and continuing tothepresent time,thedefendant urged readers to "pay him a visit" and includedtheplaintiff's residence address and phone numbers.Thesixth posting encouragedthereaders "to emailtheco-op and complain about their resident (he may get kicked out if they get enough complaints)".Theplaintiff testified thatthemanagement of his co-operative where he lived did receive calls. As a consequence, he moved to a different address attheend of October 2007.Theseventh posting referred totheplaintiff as "a dead Jew walkin'".Thefourteenth 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 ofthee-mails in March 2008 said, "Your day of reckoning is coming, you little homo creep!"

[62]Thepostings andthee-mails have continued for over two years. They have persistently expressed hatred and anger and have called on others to act againsttheplaintiff, 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 regardingtheplaintiff'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 madetheplaintiff apprehensive of imminent physical harm and reasonably so, particularly inthecontext ofthewide publication ofthepostings ontheInternet andthevery real possibility that someone will, as they have inthepast by contacts withthemanagement oftheplaintiff's residence, act onthedefendant's repeated invitations to others to findtheplaintiff and inflict serious physical harm on him.

[63] It is for these reasons that I findtheplaintiff is entitled to recover damages forthedefendant's assault against him.

Invasion of privacy

[64] In addition tothedefamatory nature ofthepostings causing injury totheplaintiff's reputation and in addition totheassaultive nature of boththepostings andthee-mails causing him to fear imminent physical harm,theplaintiff also claims damages for invasion of privacy because ofthepostings.

[65] Since 2004 and with his extensive human rights work relating to hate propaganda ontheInternet andtheattention that this work has garnered,theplaintiff 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 oftheplaintiff's personal information including an aerial photograph and map to locatetheplaintiff's residence,thepostings certainly do invadetheplaintiff's privacy.

[66] I am cognizant, asstated by Aston J. inNitsopoulos 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. didinWong, thatthelaw is not settled in Ontario and thatthelaw of libel andslander"should not act to bludgeon other meritorious causes of action where they can stand on their own" (at para. 16),thedamages would have to flow from harm that is not subsumed bythetorts ofdefamationand assault.

[67] I do not find thatthedamages claimed bytheplaintiff forthetort of invasion of privacy are distinct from those flowing fromthetorts ofdefamationand assault.

[68]InWong, there was separate conduct that could have beenthesource ofthetort of invasion of privacy, separate fromthelibellous words.

[69] Inthepresent case, there is no tortious conduct amounting to an invasion of privacy that is separate fromtheconduct makingthedefendant liable for damages fordefamationand assault.Theresult is that whilethedefendant's conduct amounting todefamationand [page679] assault have caused injury totheplaintiff's reputation and to his right to "mental security" (Canadian Tort Law, supra, at p. 49) andtheplaintiff is able to recover damages for these injuries, there is no separate injury to any common-law right to privacy thattheplaintiff may enjoy. In particular,theplaintiff is entitled to recover damages forthedefendant's assault against him forthesame reason that he seeks damages for breach of his right to privacy, namely, because ofthepostings that publish his personal information and cause him apprehension of imminent physical harm.

[70] In other words,theconduct causingtheharm is recoverable in damages fordefamationand assault and there is no separate tortious conduct resulting in separate harm, in my view, that is recoverable bytheplaintiff for a tort of invasion of privacy

[71] Another ofthecases relied on bytheplaintiff regardingtheissue of there being an actionable tort available totheplaintiff is also distinguishable.InGriffin v. Sullivan,[2008] B.C.J. No. 1333,2008 BCSC 827,theclaim for breach of privacy was based on a statutorily actionable tort created bys. 1ofthePrivacy Act, R.S.B.C. 1996, c. 373of British Columbia, making it a tort "for a person, willfully and without a claim of right, to violatetheprivacy of another". There is no similar claim bytheplaintiff inthepresent case.

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

[73] I findtheplaintiff is entitled to general damages fordefamationand assault bythedefendant. He also claims aggravated and punitive damages.

[74]InHill 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,theSupreme Court of Canada stated, at para. 187,

Theassessment of damages in a libel case flows from a particular confluence ofthefollowing elements:thenature and circumstances ofthepublication ofthelibel,thenature and position ofthevictim ofthelibel,thepossible effects ofthelibel statement uponthelife oftheplaintiff, andtheactions and motivations ofthedefendants.

[75]Thedefendant has attackedtheplaintiff's professional and his personal reputation. He has been giventheopportunity to retract his comments, to apologize, to stop making his defamatory statements and he has refused to do so.Thepostings have continued.Thee-mails were initiated in addition tothepostings. Both have continued. [page680]

[76]Thedefendant's comments inthepostings and inthee- mails are, I agree, particularly vicious, profane and extreme, as summarized before.

[77] Additionally, due tothenature oftheInternet and as commented uponinBarrick 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,thepostings are instantaneous, omnipresent, borderless and far-reaching.

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

[79]Thepostings andthee-mails are also malicious. I find thatthedefendant has been motivated by malice in making them: Hill v. Scientology, at para. 145.Thepostings have been made dishonestly and in knowing or reckless disregard ofthetruth. Those that statetheplaintiff is a convicted pedophile and a gangster and organized crime figure are glaring examples of this deliberate malice. Similarly, afterthedefendant was served withtheStatement of Claim, he chose to contacttheplaintiff directly throughthee-mails and to continue his slurs and threats.

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

[81] There is alsotheplaintiff's claim for punitive damages. Asstated inWhiten v. Pilot Insurance Co.,2002 SCC 18 (CanLII), [2002] 1 S.C.R. 595, [2002] S.C.J. No. 19, at para.94,theobjectives 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]Thedefendant's misconduct can be characterized as highly reprehensible misconduct, as referred toinWhiten.Theissue is whethertheother penalties incurred, includingtheawarding of general damages, aggravated damages and injunctive relief, adequately reflecttheobjectives of retribution, deterrence and denunciation. In my view, in this case they do, in any event, with damages having to be capped at $50,000, as referred to below,theissue becomes somewhat academic.

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

[84] I accepttheplaintiff's submission that he has suffered damages in an amount exceedingthe$50,000 he has claimed and that he has waivedtheexcess so as to be able to proceed undertheSimplified Rules.

[85] He is, as stated before, entitled to general and aggravated damages fordefamationand assault. He submits that an award inthetotal amount of $175,000 is appropriate in all ofthecircumstances

[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 totheBritish Columbia Court of Appeal by two ofthedefendants with respect tothetrial 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,theplaintiff was awarded a total of $30,000 in damages for general and aggravated damages resulting from defamatory postings. Inthepresent case,thedamages are also for assault andthevery justifiable apprehension of imminent physical harm.

[88] I accept that a total amount of $175,000 would betheappropriate quantum of general and aggravated damages totheplaintiff fordefamationand assault. I would award this level of damages more than, for example, was awarded in Warman v. Fromm, because oftheincreased seriousness oftheallegations inthepresent case,thefrightening threats that have been made,thedanger they have created andtheextreme malice that has been demonstrated.

[89] Withtheplaintiff's waiver oftheexcess over $175,000, I award damages totheplaintiff inthetotal amount of $50,000, comprised of $20,000 as general damages fordefamation, $10,000 as aggravated damages fordefamation, $15,000 as general damages for assault and $5,000 as aggravated damages for assault. Injunctive Relief

[90] Injunctive relief is appropriate.Thedefendant has attorned tothejurisdiction of this court. As submitted at paras. 108-117 oftheplaintiff's written submissions, I agree that there is no bar to this court ordering injunctive relief againstthedefendant and that such relief is necessary in light ofthedefendant's conduct overthelast two years. [page682]

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

[92] I order, therefore, thatthedefendant be subject totheinjunctive relief as requested intheplaintiff's written submissions, at pp. 30-31, subparts. 119(c) -- (f). Pre-and Post-Judgment Interest and Costs

[93]Theother relief of pre-and post-judgment interest, as well as costs on a substantial indemnity basis, is also ordered, as requested bytheplaintiff.

[94]Theplaintiff is to forward his bill of costs to me forthefixing of their quantum as well as a draft judgment in accordance with these reasons.

Action allowed.

2) CASE 2 - Tran v. Financial Debt Recovery Lt

Mark Tran, plaintiff, appearing on his own behalf. A. Savage, for defendant. [1] MOLLOY J.:The plaintiff, Mark Tran, commenced this action under the Simplified Rules on April 17, 2000, in a desperate attempt to end the harassment to which he had been subjected by the defendant debt collection agency. The defendant's activities were directed towards collecting the balance allegedly owing on a student loan. Mr. Tran conducted the action on his own without the benefit of any legal advice. A. BACKGROUND [2] Mr. Tran graduated from the University of Toronto with a commerce degree in 1996. He obtained a job on contract after graduation and began making payments to the bank on his student loan. When the contract ended he was unemployed for eight months, during which time there was a suspension of the requirement of monthly payments on the student loan. In September 1997, Mr. Tran obtained a fulltime job as a financial analyst with an investment consulting company, James P. Marshall Inc. Shortly thereafter, Mr. Tran contacted his bank to resume payments on the student loan but was told the loan was no longer with the bank and he would have to deal directly with the government. Mr. Tran attempted without success to get information from the government about the balance outstanding on his loan and to arrange for repayment. He sent a number of letters to the government, but received no response. [3] In May 1999, Mr. Tran received a phone call from a Mr. Spina who said he was with the Management Board of the Ontario government. They had several discussions about the amount outstanding on the student loan. Mr. Tran disputed the number being put to him by Mr. Spina and 2000 CanLII 22621 (ON SC) requested that Mr. Spina write to him to set out the basis for the figures claimed. Initially, Mr. Spina refused, but eventually did send a demand letter dated May 20, 1999 stating the balance outstanding as $13,195.51, but providing no other particulars. The letter was written on the letterhead of the defendant Financial Debt Recovery Limited. This was the first indication Mr. Tran had that Financial Debt Recovery was involved or that Mr. Spina was not, in fact, employed by the Government of Ontario. Mr. Tran sent a response on May 29, 2000, stating: I write to respond to your letter dated May 20, 1999. First, from the letterhead, it is clear to me that you are not from the government. Had you told me about that fact at the beginning, both you and I could save a lot of time. It is now no surprise to me that you have not received any copy of the letters I send [sic] to the government. As I mentioned to you, I have been asking the government for information to clear out the issue of student loan for more than one year, but I have received no reply. They created enormous stress for me. Second, you ask me to pay what I don't own [sic]. For the good of your business, you should contact the government to return the loan under my name that you bought for possible refund. If you could ask them to respond to the request in my letters sent to them, I really appreciate [sic]. Finally, I am certain that the above issue will be solved, and I hope it will be soon, but it will be absolutely between me and the government, not you. So please do not contact me anymore. Thank you. [4] After this, employees of the defendant collection agency started to call Mr. Tran at work. I will deal in more detail with the defendant's conduct later in these Reasons. That conduct was appalling. There was a steady barrage of rude and abusive calls to the workplace. Other employees at Mr. Tran's workplace, including those at an executive level, were affected by this conduct. The telephone calls included verbal abuse, name-calling, swearing, threats of harm and outright lies. Some of these malicious falsehoods were told directly to the president of the company employing Mr. Tran. This pattern of harassment continued from June, 1999 through to the end of March, 2000. At the end of March, after receiving 7 calls of an abusive nature within half an hour, the receptionist of the company said she would call the police if the calls did not stop. She reported her concerns to her boss and the company vice-president instructed Mr. Tran to take whatever steps were necessary to stop the defendant from calling him at the office. Mr. Tran had already asked various of the defendant's employees to stop calling him at work, he had provided the defendant with his home address, home email address and home telephone number, and he had suggested to the defendant that it start a court action about the amount owing so that their dispute as to that figure could be resolved. None of his 1 Notice of Appeal filed in the Ontario Divisional Court December 1, 2000 (Court File No. 751/2000). 2000 CanLII 22621 (ON SC) entreaties had any effect whatsoever on the tactics of the defendants. Therefore, Mr. Tran commenced this action. It was only then that the harassment stopped. [5] The statement of claim was issued on April 17, 2000, and was prepared by Mr. Tran without legal assistance. The claim itself is less than a full page long. However, it particularizes a number of allegations of wrongdoing by employees of the defendant, including: making false statements to Mr. Tran's employer; harassing Mr. Tran and his colleagues by repeatedly making rude calls to the workplace; calling Mr. Tran insulting names in front of others; and threatening Mr. Tran that they would "deal with him personally". The plaintiff pleaded that the conduct of the defendant's employees caused him humiliation and stress, damaged his reputation, and deprived him of a raise and bonus from his employer in 1999. The plaintiff claimed damages of $15,000.00. [6] The defendant's solicitor delivered a statement of defence on May 17, 2000. The defence is essentially a bald denial of every aspect of the plaintiff's claim and states that the specific events set out in the statement of claim never occurred. The defence then pleads that the statement of claim does not disclose a cause of action and that there is no genuine issue for trial. The statement of defence claims costs on a solicitor-and-client basis. There are two things that are significant by their absence. First, the corporate defendant did not plead that if the events pleaded did occur, they were undertaken without the authority or approval of the defendant. Second, the defendant did not assert a counterclaim against Mr. Tran for the balance allegedly outstanding on his student loan, although it was certainly open to it to do so. The defendant brought no motions prior to the date of trial for a determination as to whether there was a cause of action or a genuine issue for trial. The plaintiff failed to deliver an affidavit of documents as required under the Rules, about which the defendant made no complaint. [7] At the outset of the trial before me, counsel for the defendant, as a preliminary issue, sought a ruling under Rule 21 dismissing the plaintiff's claim for failing to disclose a cause of action. Although no formal notice of motion for that relief had been delivered, I agreed to hear argument on the point. Following argument, I dismissed the motion for brief oral reasons delivered at the time. Essentially, I held that the statement of claim set out the prerequisites for pleading the tort of defamation and probably also for the tort of intentional infliction of emotional suffering. The defendant had argued that the plaintiff failed to plead that the defendant was vicariously liable for the actions of its employees and submitted that the action should be dismissed on that ground alone. I rejected that submission. The action was brought solely against the defendant corporation. The acts of wrongdoing alleged are all said to be done by employees of the defendant. Although the plaintiff did not go the extra step of 2000 CanLII 22621 (ON SC) specifically alleging that the corporation is liable for the actions of its employees, that is the inescapable implication of the pleading taken as a whole. I do not consider the pleading to be deficient in that regard. [8] Next, counsel for the defendant sought a ruling that the plaintiff should not be entitled to file any exhibits or call any witnesses at trial because he had failed to comply with rule 76.04. The plaintiff did not deliver any affidavit of documents and also did not provide a list of persons who might reasonably be expected to have knowledge of the matters at issue, as required by the Rules. However, the trial judge still has a discretion to permit the filing of exhibits and the calling of witnesses notwithstanding a failure to disclose. In this case, the plaintiff proposed calling only one witness, the president of the company that employs him. Counsel for the defendant was aware of this witness prior to trial. Further, none of the documents which the plaintiff wished to file as exhibits caught the defendant by surprise. The defendant was unable to point to any prejudice caused by the failure of the plaintiff to comply with the Rules for disclosure in simplified actions. I therefore dismissed the defendant's motion. [9] It is worth mentioning at this point that after the trial was underway, I learned that the defendant had itself failed to comply with the Rule requiring documentary production and did not deliver any affidavit of documents. The explanation offered was simply that the defendant would not be seeking to rely on any documents at trial. That is not the test for production. The defendant is required to disclose all documents in its possession or control relating to any matter in issue in the action. It is obvious that the defendant must have had such documents. It seems to me that the defendant, which was represented by counsel, took advantage of the fact that Mr. Tran was unrepresented in order to avoid its obligations for disclosure under the Rules. [10] The trial then proceeded before me. Mr. Tran called two witnesses, himself and Ms. Anne Marshall, the president of James P. Marshall Inc. Mr. Tran's evidence confirmed the allegations in his statement of claim as to the pattern of harassment by employees of the defendant and the effect it had upon him. He was unshaken on cross-examination. Ms. Marshall testified as to conversations she had with employees of the defendant and the effect the defendant's actions had on Mr. Tran and how he was perceived within the company. Her evidence was unshaken on cross-examination. Two telephone message slips and two letters were filed as exhibits during Mr. Tran's evidence and two slips of paper with notes in Ms. Marshall's writing were marked as exhibits during her evidence. Mr. Tran then closed his case. 2000 CanLII 22621 (ON SC) [11] The defendant called no witnesses and presented no documentary evidence. There is therefore absolutely nothing to rebut the plaintiff's evidence. I accept it in its entirety, not only because it is uncontradicted by the defendant, but also because I found Mr. Tran to be a very credible witness. He was honest and direct. He did not exaggerate or embellish. His evidence is supported by the documentation and by the evidence of the independent witness, Ms. Marshall. I also found Ms. Marshall's evidence to be credible and accurate. My findings of fact based on the evidence before me are set out below. B. FACTUAL FINDINGS [12] The first contact Mr. Tran received from the defendant company was a phone call in May, 1999, from one of its employees, Mr. Spina. During that and two subsequent discussions, Mr. Spina falsely represented to Mr. Tran that he was an employee of the Management Board of the Government of Ontario. [13] Mr. Tran had always been prepared to resume payments on his student loan and had voluntarily contacted both the bank and the government to set that up. Mr. Tran had difficulty getting full information as to the amount outstanding. He told Mr. Spina from the outset that he disputed the accuracy of the loan balance stated by Mr. Spina. He maintained this position throughout with various representatives of the defendant. However, the defendant refused to address Mr. Tran's concerns. Mr. Tran told the defendant he would be prepared to deal with the issue in a court action and suggested that the defendant commence a proceeding so that the issue of the amount owing could be determined. The defendant never did so. [14] Employees of the defendant repeatedly, and unnecessarily, called Mr. Tran at work. They were abusive and insulting to him. The nature of the telephone system at the workplace was such that calls went first through a receptionist. Both the abusive manner of the callers and the frequency of the calls were disruptive to the company's business and its employees. Mr. Tran requested on numerous occasions that the defendant stop calling him at work and he provided the defendant with his home address, e-mail and telephone number. This had no impact on the volume of calls from the defendant to the plaintiff's place of employment. [15] In July, 1999, Mr. Tran received a call at work from a Mr. Papatetrou who told him he was a lawyer with the Ontario government, spoke to him about the outstanding debt and asked to be connected with Mr. Tran's boss. Mr. Tran refused to transfer the call. 2000 CanLII 22621 (ON SC) [16] On July 21, 1999, Mr. Papatetrou called the workplace again and spoke to Ms. Anne Marshall, the president of the company. It is not clear if Mr. Papatetrou called with the intention of contacting Ms. Marshall or whether he just called the company number and she happened to answer the phone. However, Mr. Papatetrou told Ms. Marshall that he was a lawyer with the Ontario Government and that Mr. Tran owed the government money. He asked her if she was aware that Mr. Tran had applied for job with TD Securities and raised with her whether this constituted a conflict of interest. He then advised her that the Sheriff would be attending at her company within 24 hours to serve a court order. Ms. Marshall responded that she had not known that Mr. Tran was looking elsewhere for a job but that she thought that was his own business and that it did not constitute a conflict of interest. She also advised that she would, of course, comply with any court order or garnishee upon being served with the appropriate documents. [17] Mr. Papatetrou was an employee of the defendant. He was not a lawyer. He was not employed by the Government of Ontario. His statement that Mr. Tran was applying for another job was untrue. His statement that the Sheriff would be attending in 24 hours was a lie. The defendant did not have a court order. The defendant had not even commenced an action. Virtually everything said by Mr. Papatetrou was a fabrication. [18] Following her discussion with Mr. Papatetrou, Ms. Marshall called Mr. Tran into her office and told him what Mr. Papatetrou had said. She told Mr. Tran that he was free to look for other work if he chose to but that she would appreciate receiving reasonable notice. She also told him she was not pleased to be receiving this type of call and that he should ensure such calls were directed to his home in the future. Finally, she advised Mr. Tran that people were expected to pay their debts and that a call from a lawyer about this was "serious stuff". [19] Ms. Marshall testified at trial that this call from Mr. Papatetrou was irritating to her. She said that Mr. Tran was apologetic and seemed sincere when he said that he had tried to direct these type of inquiries to his home. He also denied that he was looking for other work. However, she acknowledged that this whole situation was a source of concern to her and to others within the company. As an investment firm handling large pension investment funds, the company did not wish to employ people who were having problems with their own money. She considered that Mr. Tran, if not untrustworthy, was "a titch irresponsible" or he would not be in this position. She, and other executives, were concerned about the volume of calls from the defendant which she said were sometimes as many as 10 in an hour. She was also concerned about the rudeness of the defendant's employees who called her 2000 CanLII 22621 (ON SC) company, which she experienced first-hand on more than one occasion when she answered the phones. For example, towards the end of August, Ms, Marshall had a telephone discussion with a Ms. Gascho who was an employee of the defendant. Ms. Marshall described Ms. Gascho as one of the more persistent of the callers and said she was very rude. In the conversation at the end of August, Ms. Gascho asked Ms. Marshall if she was aware that Mr. Tran had a responsibility to take her calls and suggested that Ms. Marshall was not running a good firm to let this go on. When Ms. Marshall asked that the defendant call Mr. Tran at home rather than at work, Ms. Gascho replied that it was not Ms. Marshall's prerogative to tell them where to call and that they were permitted by law to call the workplace as often as they had been. After this call, Ms. Marshall again spoke to Mr. Tran and told him to get the defendant to stop calling the office. The calls continued unabated. [20] The company's year-end was the end of October. Mr. Tran had been hired in September 1997 in an entry-level position at a salary of $28,000.00. This was raised to $29,000.00 the next month. In October 1998, Mr. Tran received a $6,000.00 raise and a $4,000.00 bonus, with the result that his compensation for that year increased to $39,000.00. The defendant started its harassment of the plaintiff in the workplace in the summer of 1999 and continued throughout the fall. In October 1999, Mr. Tran received no raise and no bonus. After Mr. Tran started this action in April 2000, the defendant's harassment stopped. In October of this year he was given a $5,000.00 raise. Bonuses have not yet been announced for 2000. [21] Mr. Tran testified that he received a number of calls at the end of March from an employee of the defendant who identified himself as Alexander, but who refused to provide a surname. Alexander yelled at him and swore at him on the phone and repeatedly called him a "stupid snaky son". During these calls, Mr. Tran could hear other people in the background laughing at the names Alexander was calling him. Alexander told Mr. Tran on two occasions on March 31, 2000 that he would "deal with him personally", a remark which Mr. Tran interpreted as a threat against his person. He found these calls very distressing. [22] Various other employees in the workplace intercepted these calls from representatives of the defendant from time to time. The person whose job responsibilities included answering the telephone was very upset by these calls. On one occasion she found the defendant's employee to be so offensive that she requested a co-worker (David) to speak to him. On March 31, after receiving 7 calls from Alexander in half an hour, the receptionist told him that if he called again, she would call the police. Mr. Tran, who was passing by her desk at the time, overheard that conversation. The receptionist then 2000 CanLII 22621 (ON SC) advised Mr. Tran that she was going to have to report the situation to the vice-president, which she did. This precipitated the direction from the vice-president to Mr. Tran that he must do something to solve the problem (as I referred to in paragraph 4 above). C. ANALYSIS [23] The plaintiff, not being versed in the law, simply put the facts of his case before the court and requested relief. Essentially, he saw his cause of action as being based on harassment by the defendant and his damages as flowing from emotional suffering, damage to his reputation and loss of income. It seems to me that the potential causes of action arising from the facts proven at trial are defamation, intentional infliction of emotional harm, interference with economic interests, threatening bodily harm and invasion of privacy. I alerted counsel for the defendant to all of those possibilities, with the exception of invasion of privacy, and invited his submissions. [24] Regrettably, counsel for the defendant was of no assistance to the Court on the legal issues. He had come to trial prepared to address only the issue of defamation. He submitted no case authority for my consideration on any point raised. The potential causes of action are easily ascertainable from the statement of claim. There were no surprises at trial. The evidence in support of the plaintiff's case was precisely as outlined in the pleading. Therefore, if the defendant was unprepared to deal with the issues of law raised, that is its own fault. Defamation [25] In order to recover damages for defamation a plaintiff must prove that the words complained of were published, that the words complained of refer to the plaintiff and that the words complained of are defamatory of the plaintiff. Words are considered to be defamatory if they tend to lower a person in the estimation of right-thinking members of society: Gatley on Libel and Slander, 9th ed. (London: Sweet & Maxwell, 1997) at p. 7; Botiuk v. Toronto Free Press Publications Ltd, [1995] 3 S.C.R. 3 at 24, 126 D.L.R. (4th) 609; Cherneskey v. Armadale Publishers Ltd., [1979] 1 S.C.R. 1067 at 1079, 90 D.L.R. (3d) 321. [26] The defendant argues that the comments and name-calling by Alexander on the telephone to Mr. Tran do not give rise to liability because they were not published. I disagree. It was clear to Mr. Tran from his end of the line that Alexander was making these derogatory statements about him to the general merriment of other employees of the defendant who could hear Alexander's end of the conversation. However, it is not clear that those individuals who heard the conversation knew that the 2000 CanLII 22621 (ON SC) remarks related to Mr. Tran. An argument could be made that it is reasonable to draw an inference to that effect, especially given the failure of the defendant to call any evidence to rebut it. However, I have decided against doing so. Any damages for this particular act of defamation would not be extensive in any event given the limited extent of the publication and the persons to whom the publication was made. [27] The statements made by Mr. Papatetrou to Ms. Marshall are, however, clearly actionable. Mr. Papatetrou told Ms. Marshall that Mr. Tran had applied for another job and suggested that this put him in a position of conflict of interest. There was an innuendo created that Mr. Tran was therefore a disloyal and unreliable employee. Mr. Papatetrou also told Ms. Marshall that the Sheriff would be attending at the workplace to serve a court order, thereby giving the impression that there was in fact a judgment against Mr. Tran for failing to pay a debt. The statements made by Mr. Paptetrou were untrue. Counsel for the defendant conceded that they are defamatory. I agree. Ms. Marshall hers