Rodrigues v Rodrigues, 2013 ABQB 718

Court of Queen’s Bench of Alberta Citation: Rodrigues v Rodrigues, 2013 ABQB 718 Date: 20131206 Docket: 1101 06442 Registry: Calgary Between: Father Newton Rodrigues Plaintiff - and - Aires Rodrigues Defendant Corrected judgment: A corrigendum was issued on January 6, 2023; the corrections have been made to the text and the corrigendum is appended to this judgment. _ ________________________________________ ______________ Reasons for Judgment of the Honourable Madam Justice K. D.

Nixon _________________________________________ ______________ Introduction [ 1 ] Father Newton Rodrigues, the Plaintiff, is a Catholic Priest from Goa, India, currently residing in the City of Calgary, in the Province of Alberta, where he is the Parish Priest in the Diocese of Calgary at St. Bernadette’s Roman Catholic Church. He commenced

an action for defamation against Aires Rodrigues (no relation), the Defendant, a lawyer in Goa, India. The Defendant did not defend this action and was Noted in Default. The matter was set down for an assessment of damages pursuant to Rule 3.37 of the Alberta Rules of Court . The Plaintiff seeks general, aggravated and punitive damages, solicitor/client costs on a full indemnity basis as well as injunctive relief. Facts [ 2 ] Having been Noted in Default, the Defendant is deemed to have admitted the facts in the Statement of Claim: TLA Food Services Ltd. v 1144707 Alberta Ltd. 2011, ABQB 550 .

In addition to the deemed admissions, the Plaintiff testified and witnesses were called on his behalf. [ 3 ] The Plaintiff sued in respect to statements about him made by the Defendant in the Fall of 2010 through to May 2011. The Defendant had made similar statements in Goa starting in 2004.

These earlier statements were admitted to prove that the Defendant was the author of the statements at issue in this action, i.e. to prove identity. [ 4 ] In August, 2004, the Defendant alleged that the Plaintiff had sexually molested a 13 year old girl on December 24, 2003 by touching her breasts when he was Parish Priest in Ribandar Roman Catholic Church in Goa, India.

Prior to this allegation being made, the Plaintiff and the sisters at the Ribandar Convent had made a complaint to the Goan police in 2004 that the Defendant had trespassed at Ribandar Parish. [ 5 ] The Plaintiff testified that the alleged incident with the 13 year old girl did not occur. Both the girl and her mother filed statements with the Goan police stating the allegations were untrue. Admitted into evidence under the principled approach to hearsay were affidavits sworn in February 2005 in Goa, India by the parents of the girl swearing to the fact that the alleged misconduct did not occur.

The test of necessity and reliability were met as these individuals are in Goa, India, outside the jurisdiction of this Court, and their statements were taken under oath. Further the statements of the girl’s parents are confirmed by the Plaintiff’s evidence. Likewise, documents provided by the Goan police and Goan courts relating to their response to the allegations of the Defendant, in essence finding that the alleged incident had not occurred, were also admitted under the principled approach to hearsay.

As the creators of the documents are outside the jurisdiction of this Court, the requirement of necessity was met. The reliability component of the test was met as they were authored by the court and police in Goa. [ 6 ] The Goan police investigated the Defendant’s allegations and all charges were dropped. The Defendant alleged that the Goan police had been “foot dragging” with regards to the investigation and alleged political interference in the investigation. The High Court of Bombay at Goa Appellate Side found that the investigation was timely, fair and proper.

The Goan court found that the Defendant was pursuing publicity or had oblique motives. [ 7 ] In 2006, the Plaintiff came to Canada on leave which had been approved by the Goan Archbishop and took a position as Parish Priest at St. Bernadette’s Roman Catholic Church in Calgary, Alberta. At that time, the Plaintiff disclosed to Bishop Henry, the Bishop of the Diocese of Calgary, the prior allegations of the Defendant, the Goan police investigation and the dismissal of the allegation.

Bishop Henry contacted the Archbishop of Goa at that time and was told there was no substance to the allegations. [ 8 ] In the Fall of 2010 and through to May, 2011 the Defendant repeated his allegations of sexual abuse following a decision by Goan public prosecutors to pursue trespass charges against the Defendant arising out of the complaint that had been made in 2004 to the Goan police by the Plaintiff and the sisters of Ribander Convent.

The Defendant had no involvement in the decision of the Goan police to pursue these charges in 2010. [ 9 ] It is in respect of the allegations from the Fall of 2010 to May 2011 that the Plaintiff sues in Alberta. These allegations were made by blog postings and articles posted on the Internet which were read by individuals in Alberta. In addition, the allegations were made in emails sent by the Defendant to the CEO of the Calgary Diocese, to priests at St. Gabriel’s in Chestermere, Alberta, and St. Mary’s in Cochrane, Alberta.

The Defendant also sent an email to the parishes in the Roman Catholic Diocese of Calgary (which comprises 88 Parishes in Southern Alberta) which was read by parish priests and administrative staff. The Defendant’s email was forwarded to Bishop Henry. The Defendant’s email was also sent to the Catholic School Board and its administrators, and to St. Bernadette’s Parish in Calgary where the Plaintiff was the Parish priest. Parents of students at St. Bernadette’s Elementary School became aware of the allegations.

The allegations, having been posted on the Internet, became known within the Goan community in Calgary and were discussed at the 2012 Annual General meeting of the Goan Association of Calgary. The membership of the Goan Association is predominately Roman Catholic and Goan Priests are honourary members. [ 10 ] The Defendant alleged that the Plaintiff had admitted to touching the girl’s breasts, and that the Plaintiff had apologized to her mother. The Defendant also alleged that there had been a cover-up and political interference by the Governor of Goa allowing the Plaintiff to evade justice in Goa.

He implied that the Plaintiff had avoided charges because he had fled Goa. The Defendant further alleged that the Plaintiff had been relieved from his position by the Archdiocese of Goa when, in fact, he had been given permission by the Archbishop of Goa to take the position in Calgary. The Defendant also implied in his statements that the Plaintiff was going to be apprehended and returned to Goa to face charges now that his whereabouts were known. [ 11 ] The allegations by the Defendant are, on their face, defamatory.

The impugned words refer to the Plaintiff and would tend to lower his reputation in the eyes of a reasonable person. The allegations were published, i.e. communicated to at least one other person than the Plaintiff. Although a plaintiff need not prove that defamatory statement are false ( Grant v Torstar Corp. 2009 SCC 61 , paras 32 – 33 ), the evidence before this Court, as well as the deemed admissions, establish that the statements are false. Jurisdiction

[ 12 ] An initial question arose as to whether this Court has jurisdiction to hear this case against a foreign defendant who has not attorned to the jurisdiction. I am satisfied that it does. The Defendant was personally served in India. Rule 11.25(2)(

a) of the Alberta Rules of Court in effect at the time of service of the Defendant provided that a document may be served outside of Canada if a “... real and substantial connection exists between Alberta and the facts on which a claim in an action is based and the commencement document is accompanied with a document which sets out the grounds for service of the document outside of Canada.” At the time of service, the Rules did not require a prior court order for service ex juris. [ 13 ] The Defendant was served with the Statement of Claim and a Notice to the Defendant which set out the grounds for service outside Canada, namely emails which were directed at individuals in Alberta, which were calculated to injure the Plaintiff’s reputation in Alberta and to force him to leave Alberta.

The Notice states that the tort was committed in Alberta, and damages suffered in Alberta. It further provides that the claim is governed by the law of Alberta and seeks relief which would require the Defendant to refrain from further defamation in Alberta and require the Defendant to write to persons in Alberta retracting and apologizing for defamatory communications. [ 14 ] Rule 11.25(3) sets out circumstances in which a real and substantial connection exist.

I find that real and substantial connection exists in this case as the claim relates to the tort of defamation which occurred in Alberta by virtue of publication of the emails sent to individuals in Alberta and by Internet and blog postings which were accessed by individuals in Alberta. At trial, witnesses who accessed the Internet and blog postings in Alberta testified. The tort of defamation occurs on publication of defamatory statements to a third party: Court v. Debaie 2012 ABQB 640 , citing Breeden v. Black 2012 SCC 19 and Crookes v. Newton 2011 SCC 417 .

The defamatory statements were read in Alberta and, thus, publication occurred in Alberta. [ 15 ] Having determined that the Defendant published defamatory statements in Alberta about the Plaintiff, I turn to the matter of damages. Damages [ 16 ] The Defendant’s defamatory emails were widely distributed within the Calgary Diocese with the allegations coming to the attention of parish priests, administrative staff and Bishop Henry as well as administrators in the Catholic School Board, teachers, and parents who had contact with the Plaintiff in his role of Parish Priest at St. Bernadette’s Catholic School.

The Plaintiff was responsible for preparing children and their parents for celebrations of life and sacraments. He made weekly class visits, conducted mass celebrations and provided religious instructions at two schools, St. Bernadette’s Catholic School and Holy Angels School. He had a good relationship with the children. [ 17 ] A number of parents who became aware of the allegations expressed concern about the Plaintiff remaining involved with their children. One parent considered removing her child from St. Bernadette’s school.

The Plaintiff experienced sadness and depression with the reactivation of the Defendant’s false allegations. He testified that he was concerned, humiliated and embarrassed about being seen in the eyes of others as a child molester and fearful about what others would think of him. He was concerned about his reputation.

Witnesses testified how the Plaintiff’s demeanour changed describing him as being sad, anxious and worried and as withdrawing from interactions with others and not being his usual smiling and outgoing self. [ 18 ] The Plaintiff testified that he could not face people and withdrew from social contact. He heard from friends that parents were talking among themselves about him. He feared being wrongly convicted.

Individuals who had seen the Defendant’s defamatory Internet postings about the Plaintiff were asking what the Calgary Bishop was going to do about it and how the Bishop could tolerate such a priest. [ 19 ] Bishop Henry met with the Plaintiff within several days of receipt of the defamatory November 21, 2010 email from the Defendant and promptly addressed the situation.

He was in immediate contact with the Archbishop of Goa who confirmed that the case was not being re-opened, that there was no new evidence and that the Defendant’s allegations were false. [ 20 ] Priests from parishes within the Calgary Diocese spoke with the Bishop about the allegations and the Bishop advised them that he was on top of the situation and was dealing with the Archbishop of Goa.

The Bishop further advised that there was no cause for alarm, that the allegations appeared unwarranted and he would send a memo to all priests and schools in Calgary. [ 21 ] On November 23, 2010 Bishop Henry wrote a memo to all of the priests and diocesan offices stating that during the initial application process to come to Calgary the normal checks and balances regarding background were followed and that the Plaintiff was totally transparent and open in revealing what had transpired in Goa.

The Bishop further stated that the Plaintiff had assured him that he was completely innocent of any wrong doing and that his innocence had been established by all the relevant documentation including the police reports, withdrawal of any criminal charges in Goa, the court documents and records and sworn affidavits of the girls’ parents. Bishop Henry confirmed in the memo there were no outstanding charges, and that no appeal was ever made to the Governor (responding to the allegations of political interference). The Bishop stated that there was “no cover-up then or now”.

The Bishop circulated a similar memo to the Catholic School Board officials, to the Chief Superintendent of Schools and to St. Bernadette’s school. [ 22 ] The Principal of St. Bernadette’s Elementary School became aware of the Defendant’s allegations in May, 2011. She met with the Plaintiff who told her he had been cleared of all charges and that Bishop Henry was supporting him in a lawsuit against the Defendant. The principal believed the Plaintiff and took no further action, telling him the school would support him.

Parents of children at the school became aware of the allegations and had approached her and a class room teacher about them. She spoke with four parents in May, 2011 after she met with the Plaintiff, and assured them that the Bishop was supporting the Plaintiff and that she did not have any concerns at the school level. [ 23 ] A demand for a retraction and apology was made of the Defendant by legal counsel for the Plaintiff by letter dated November 26, 2010. Neither was given by the Defendant.

Rather the Defendant persisted in his attacks on the Plaintiff by email and through the Internet generating critical blog postings by third parties about the Plaintiff.

[24] There are three potential heads of damages in a defamation action: general, aggravated and punitive. [25] General damages are presumed. In assessing general damages, the Supreme Court of Canada in Hill v Church of Scientologyof Toronto, (SCC), [1995] 2 SCR 1130 stated (Justice Cory for the majority) at p 1203: The factors which should be taken into account in assessing general damages are clearly and concisely set out in Gatley on Libel andSlander (8th ed.), supra, at pp. 592-93, in these words:

SECTION 1. ASSESSMENT OF DAMAGES . . . The amount of damages is “peculiarly the province of the jury,” who in assessing them will naturally be governed by all thecircumstances of the particular case. They are entitled to take into their consideration the conduct of the plaintiff, his position andstanding, the nature of the libel, the mode and extent of publication, the absence or refusal of any retraction or apology, and “the wholeconduct of the defendant from the time when the libel was published down to the very moment of their verdict.

They may take intoconsideration the conduct of the defendant before action, after action, and in court at the trial of the action,” ... They should allow “forthe sad truth that no apology, retraction or withdrawal can ever be guaranteed completely to undo the harm it has done or the hurt it hascaused.” They should also take into account the evidence led in aggravation or mitigation of the damages. [26] With regard to aggravated damages, Cory, J in Hill, stated at pp 1203-1204: There will of necessity be some overlapping of the factors to be considered when aggravated damages are assessed.

This can be seenfrom a further reference to the Gatley text at pp. 593-94 where this appears: 1452. Aggravated damages. The conduct of the defendant, his conduct of the case, and his state of mind are thus all matters which theplaintiff may rely on as aggravating the damages. “Moreover, it is very well established that in cases where the damages are at large thejury (or the judge if the award is left to him) can take into account the motives and conduct of the defendant where they aggravate theinjury done to the plaintiff.

There may be malevolence or spite or the manner of committing the wrong may be such as to injure theplaintiff’s proper feelings of dignity and pride.

These are matters which the jury can take into account in assessing the appropriatecompensation.” “In awarding ‘aggravated damages’ the natural indignation of the court at the injury inflicted on the plaintiff is aperfectly legitimate motive in making a generous, rather than a more moderate award to provide an adequate solatium . . . that is becausethe injury to the plaintiff is actually greater, and, as the result of the conduct exciting the indignation, demands a more generoussolatium.” [27] Justice Cory commented further about the appropriateness of aggravated damages at pp 1205-1206 of Hill: Aggravated damages may be awarded in circumstances where the defendants’ conduct has been particularly high-handed or oppressive,thereby increasing the plaintiff’s humiliation and anxiety arising from the libellous statement.

The nature of these damages was aptlydescribed by Robins J.A. in Walker v. CFTO Ltd., supra, in these words at p. 111: Where the defendant is guilty of insulting, high-handed, spiteful, malicious or oppressive conduct which increases the mental distress –the humiliation, indignation, anxiety, grief, fear and the like – suffered by the plaintiff as a result of being defamed, the plaintiff may beentitled to what has come to be known as “aggravated damages”. These damages take into account the additional harm caused to the plaintiff’s feelings by the defendant’s outrageous and maliciousconduct.

Like general or special damages, they are compensatory in nature. Their assessment requires consideration by the jury of theentire conduct of the defendant prior to the publication of the libel and continuing through to the conclusion of the trial. They representthe expression of natural indignation of right-thinking people arising from the malicious conduct of the defendant.

If aggravated damages are to be awarded, there must be a finding that the defendant was motivated by actual malice, which increased theinjury to the plaintiff, either by spreading further afield the damage to the reputation of the plaintiff, or by increasing the mental distressand humiliation of the plaintiff. See, for example Walker v. FTO Ltd., supra, at p. 111; Vogel, supra, at p. 178, Kerr v. Conlogue (1992), (BC SC), 65 B.C.L.R. (2d) 70 (S.C.) at p. 93; and Cassell & Co. v. Broone, supra, at pp. 825-26.

The malice may beestablished by intrinsic evidence derived from the libellous statement itself and the circumstances of its publication, or by extrinsicevidence pertaining to the surrounding circumstances which demonstrate that the defendant was motivated by an unjustifiable intentionto injure the plaintiff. See Taylor v. Despard, supra, at p. 975. There are a number of factors that a jury may properly take into account in assessing aggravated damages. For example, was there awithdrawal of the libellous statement made by the defendants and an apology tendered?

If there was, this may go far to establishing thatthere was no malicious conduct on the part of the defendant warranting an award of aggravated damages. The jury may also considerwhether there was a repetition of the libel, conduct that was calculated to deter the plaintiff from proceeding with the libel action, aprolonged and hostile cross-examination of the plaintiff or a plea of justification which the defendant knew was bound to fail. . . .Further, it is appropriate for a jury to consider the conduct of the defendant at the time of the publication of the libel.

For example, was itclearly aimed at obtaining the widest possible publicity in circumstances that were the most adverse possible to the plaintiff? [28] At p 1189 in Hill, Cory, J describes malice in the context of the defence of qualified privilege as follows: Malice is commonly understood, in the popular sense, as spite or ill-will. However, it also includes, Dickson J. (as he then was) pointedout in dissent in Cherneskey, supra, at p. 1099, “any indirect motive or ulterior purpose” that conflicts with the sense of duty or themutual interest which the occasion created. See, also, Taylor v.

Despard, (ON CA), [1956] O.R. 963 (C.A.). Malicemay also be established by showing that the defendant spoke dishonestly, or in knowing or reckless disregard for the truth. See

McLoughlin, supra, at pp. 323-24 and Netupsky v Craig, (SCC), [1973] S.C.R. 55, at pp. 61-62 [29] A particularly concerning difficulty with defamation was articulated by Justice Cory in Hill p 1196: A defamatory statement can seep into the crevasses of the subconscious and lurk there ever ready to spring forth and spread its cancerousevil. The unfortunate impression left by a libel may last a life time.

Seldom does the defamed person have the opportunity of replyingand correcting the record in a manner that will truly remedy the situation. [30] In speaking to the specific situation in Hill, involving a young lawyer, Hill, who was falsely accused by a senior lawyer ofcriminal contempt and misleading the Court, Cory, J at p 1201, succinctly captured the unfortunate reality for a person who has beenwrongfully accused of criminal conduct.

Cory, J stated that Hill was left with a “. . . nagging doubt and sense of hurt”, always wonderingwhether someone had a “… lingering suspicion that he was guilty of misconduct which was criminal in nature.” False allegations ofsexual impropriety involving a minor made against a priest, particularly a priest whose duties include work with children, are of a similarnature. [31] Punitive damages, the third category of potential damages in defamation actions, were described by Cory, J in Hill at pp 1208-1209 as follows: Punitive damages may be awarded in situations where the defendant’s misconduct is so malicious, oppressive and high-handed that itoffends the court’s sense of decency.

Punitive damages bear no relation to what the plaintiff should receive by way of compensation.Their aim is not to compensate the plaintiff, but rather to punish the defendant. It is the means by which the jury or judge expresses itsoutrage at the egregious conduct of the defendant. They are in the nature of a fine which is meant to act as a deterrent to the defendantand to others from acting in this manner.

It is important to emphasize that punitive damages should only be awarded in thosecircumstances where the combined award of general and aggravated damages would be insufficient to achieve the goal of punishmentand deterrence. Unlike compensatory damages, punitive damages are not at large. Consequently, courts have a much greater scope and discretion onappeal. The appellate review should be based upon the court’s estimation as to whether the punitive damages serve a rational purpose.

Inother words, was the misconduct of the defendant so outrageous that punitive damages were rationally required to act as deterrence? Application of Damages Principles to this Case General and Aggravated Damages [32] In defamation actions, damages are presumed. The task for the Court is to determine an appropriate award taking into accountthe factors set out in Hill. [33] The nature of the libel in this case is that the Plaintiff sexually assaulted a young girl in his parish and then evaded justice byleaving Goa and fleeing to Canada.

The allegation is made against a Priest whose duties including working with children. The potentialdevastation to the reputation of a priest of untruths of this nature is profound. They were deeply hurtful to the Plaintiff and went to thecore of his integrity. They directly affected his ability to perform his duties and resulted in his withdrawal from social contact and hisbecoming fearful of wrongful conviction.

The Defendant not only published on the Internet, accessible throughout the world, he alsosent the defamatory statements to targeted audiences: including the Plaintiff’s colleagues and the schools where he fulfilled his duties.The Defendant’s statements generated negative postings from others, further spreading the damage.

The publications were not onlywidespread, they were repeated. [34] The courts have expressed particular concern about the publication of defamatory statements made through the Internet wherethe defamation is not only widely spread but also invites comments and encouragement of the defendant’s conduct from others. SeeBarrick Gold Corp v. Lopehandia (ON CA), 2004 CarswellOnt 2258 (C.A.) (at paras 3 and 17). [35] The publications in Alberta were made years after the Plaintiff had been cleared by the Goan police and continued despiterequests for an apology and retraction.

The defamatory comments were not limited to the false allegation of misconduct with a young girlbut extended to insinuations that the Plaintiff had fled to avoid being held accountable and had benefited from political influence to avoidjustice in Goa. While there was a prompt investigation by Bishop Henry, who notified the parish priests and the schools of the falsity ofthe allegations, thereby containing and mitigating the damages to the Plaintiff’s reputation, the Court must be mindful, as stated byJustice Cory in Hill, that the hurt and harm of defamatory comments can last a lifetime.

As Justice Cory astutely observed, one neverknows what thoughts or doubts might linger in the minds of those who read the allegations. [36] As to the appropriate award for general damages, the Plaintiff provided a number of cases. In Warman v. Grosvenor 2008CarswellOnt 6629 (S.C.J.), the allegation was that the plaintiff had sexually assaulted a 13 year old girl, had a “love frolic” with her for10 months and, had been imprisoned for 18 months.

The defendant in that case falsely stated that the judge had described the plaintiff asa danger to young girls and as having “... corrupted this vulnerable victim and took advantage of her for your own sexual gratification.”The Court found in Warman that the defendant was motivated by malice and held that general and aggravated damages of $175,000 werewarranted. [37] In Griffin v.

Sullivan 2008 BCSC 827 (SC), $100,000 in general and $50,000 in aggravated damages were awarded fordefamatory statements that the plaintiff was a “paedophile, a sexual pervert, a sexual predator and a date rapist.” There was also anallegation that the plaintiff was “on the run” from police. The statements were reported and widespread by means of the Internet andthere was no retraction or apology. [38] In Finocchio v.

Kurtesi 2007 CarswellOnt 1895 (S.C.J.), the court awarded $75,000 for general damages and $50,000 foraggravated damages for false allegations of “drug dealing” and “child molesting.” The plaintiff was called a “pervert” and a “danger to

children”. [ 39 ] I consider $75,000 in general damages to be appropriate in this case. The allegations in this case are of a similar nature of those in the above-noted cases, that is, sexual misconduct involving a minor. While the damage among those with whom the Plaintiff most closely associated was mitigated by the Bishop’s prompt actions, the matter was still being discussed in the Calgary Goan community in 2012.

Further, posting the defamatory statements on the Internet, available to be read by those who do not know the Plaintiff, created the potential for ridicule and scorn by countless people who do not know the Plaintiff. [ 40 ] I find that the Defendant’s allegations were made maliciously, knowing they were false and that they were made with the intent to force the Plaintiff to return to Goa. I also find that the Defendant’s malicious actions increased the Plaintiff’s mental distress.

The false allegations were first made following a complaint by the Plaintiff in Goa in 2004 against the Defendant and then repeated years later when the Goan police pursued charges against the Defendant in respect to that complaint. The Defendant pursued the Plaintiff in an apparent attempt to discredit him in the face of the charges of trespass.

The allegations by the Defendant, a lawyer, were made despite the Goan police having cleared the Plaintiff and with the Defendant’s knowledge that his application to the Goan Court alleging police “foot dragging” was found by the Court to have been motivated by oblique motives or for publicity. [ 41 ] A statement made by a lawyer about legal matters carries significant weight and has a greater potential to be accepted as true thereby increasing the potential for damages. The repetition of the libel and the targeted audience were calculated to do the greatest harm.

Further, the Defendant ignored the demand for retraction and apology. [ 42 ] I consider aggravated damages to be warranted and award the Plaintiff $50,000. Punitive Damages [ 43 ] Punitive damages, unlike compensation damages, are intended as punishment for outrageous and egregious conduct of the defendant. As noted in Hill , they may be awarded when general and aggravated damages are “… insufficient to achieve the goal of punishment and deterrence.” Punitive damages must serve a rational purpose. [ 44 ] In Barrick Gold , supra , punitive damages were awarded.

In that case, there was a particularly extensive, repeated, and vicious libelous attack on the plaintiff alleging it had committed a wide range of criminal conduct. The libel was spread through the Internet and reached a vast and broad audience. The majority, in awarding $50,000.00 in punitive damages, noted that the defendant had held himself out to be knowledgeable in respect to the mining industry, the industry in which the plaintiff did business.

The defendant’s libelous statements had been taken seriously by some individuals and organizations and at least one regulatory agency. [ 45 ] Punitive damages are awarded in exceptional cases. In the circumstances of this case, the general and aggravated damages awards are sufficient to achieve the goal of punishment and deterrence. There is, therefore, no need to award punitive damages. Injunctive Relief [ 46 ] The Plaintiff seeks permanent injunctive relief. He relies on the case of Griffin v Sullivan , supra .

The court there granted permanent injunctive relief upon being satisfied that it could not be assumed the defendant would cease publications or remove existing defamatory materials from the Internet.

Extensive permanent injunctive relief was also granted against an out-of-province defendant in Barrick Gold , where hundreds of defamatory statements were published on the Internet over an extensive period of time prompting inquiries from the company shareholders, financial analysts and regulatory agencies. [ 47 ] In the present case, the Defendant continued to make defamatory statements over a period of time and despite a demand to stop and to issue a retraction. There is no reason to believe the Defendant will refrain from further publication of defamatory statements or remove those he has made.

An injunction, therefore, is warranted. [ 48 ] With regard to the availability of equitable relief against an out-of-province defendant, the Ontario Court of Appeal in Barrick Gold , is instructive. The court found a real and substantial connection between the plaintiff and the province of Ontario and held that the plaintiff’s reputation, goodwill and personal property required protection in Ontario.

Noting the particular difficulty created by libel transmitted by means of the Internet, the court stated at para 75: The highly transmissible nature of the tortious misconduct at issue here is a factor to be addressed in considering whether a permanent injunction should be granted. The courts are faced with a dilemma.

On the one hand, they can throw up their collective hands in despair, taking the view that enforcement against such ephemeral transmissions around the world is ineffective, and concluding therefore that only the jurisdiction where the originator of the communication may happen to be found can enjoin the offending conduct.

On the other hand, they can at least protect against the impugned conduct re-occurring in their own jurisdiction. [ 49 ] I find that there is a real and substantial connection between the Defendant and Alberta in that the publication of the defamation statements occurred in Alberta and the Plaintiff’s reputation requires protection in Alberta.

Although, as noted in Barrick Gold , the effectiveness of injunctive relief, being an equitable remedy, relies upon the control that can be exercise over a defendant and injunctive relief may be enforceable against Aires Rodrigues only if he were to personally come to Alberta, this Court can protect the Plaintiff from the Defendant’s defamatory statements in Alberta. Therefore, the injunctive relief requested by the Plaintiff is granted as follows: 1.

The Defendant, Aires Rodrigues, is enjoined and refrained from the publication or distribution on the Internet, or by any other method or medium, of any defamatory statements about or referring in any other way to the Plaintiff by any means, including, without limitation of the generality of the foregoing, the Internet, email, social media website, or any other means or method.

The Defendant is prohibited from publishing or causing to be published any such statements in his own name (or by using his or any other email address), whether by the Defendant’s own name, in the name of any nicknames, pseudonyms, or aliases he now uses, has used or may use in the

future. The Defendant is further prohibited from publishing or causing to be published any such statement about the Plaintiff,anonymously, or in the name of another person. Without restricting the generality of the foregoing, this Order will prohibit theDefendant, Aires Rodrigues, from using the device or technique of “anonymous re-mailing” to publish or republish any defamatorystatement of or concerning the Plaintiff. 2.

Any third parties, including any Internet service provider or site, who have published, posted or distributed or who have otherwiserepeated the defamatory comments by the Defendant, Aires Rodrigues, about the Plaintiff are directed to assist the Plaintiff and thisHonourable Court in the enforcement of this injunction, including the removal of any defamatory comments about the Plaintiff from theInternet and any other form of publication or distribution.

This includes, without limiting the generality of the foregoing, any website,social media site, blog, usernet news groups, chat site, email or any other electronic means. 3. For the purposes of this order, “defamatory” means any 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; 4.

The Defendant shall make all reasonable efforts to remove from the Internet, the entirety of any and all internet posting that hepublished or caused to be published, and which refer to Newton Rodrigues, Father Newton Rodrigues, Goan Priest, or any other name oridentification which refers directly or indirectly to the Plaintiff, within 60 days of service of this Order upon him; 5. The Defendant shall be restrained from contacting or communicating with the Plaintiff, directly or indirectly, in any way, or by anymethod; 6.

If the Defendant is in breach of this Order by failing to remove existing postings on the Internet for which the Defendant isresponsible, or has caused to be published, posted, or repeated, the Plaintiff may apply for a further Order of this Honourable Courtrequiring any person or company or other organization within the jurisdiction of the Court, who has notice of this Order, to remove suchposting from the party or parties of the Internet within their control. 7.

The Plaintiff may apply to this Honourable Court to expand or otherwise change the terms of this Order on the ground that it hasfailed or is failing to achieve one or more of its purposes; 8. The Plaintiff may seek the aid of foreign courts of competent jurisdiction to seek the enforcement of this Order, and thisHonourable Court requests the aid of foreign courts of competent jurisdiction to assist in the enforcement of this Order. Apology and Retraction [50] The Plaintiff seeks an order compelling the Defendant to issue a retraction and apology.

While an apology and retraction, or afailure to do so, are matters that can be taken in account in assessment damages, it is unclear whether a court can direct a defendant toissue an apology and retraction. [51] In Brown on Defamation, 2nd ed vol 6, loose-leaf 2001 Release (Toronto:Carswell, 1994) at p 26-55 to 26-56, this issue wasaddressed: In addition to recovering damages and obtaining an injunction, a plaintiff may also request an order requiring a newspaper or broadcasterto publish a retraction or apology.

The general rule is, however, that in a defamation action a retraction or apology cannot be ordered bythe court, unless, of course, the court is merely ordering what has been agreed upon by the defendant by way of settlement. [52] In Hunger Project v Council on Mind Abuse (C.O.M.A.) Inc. (1995) (ON SC), 22 O.R(3d) 29 (Gen. Div),the trial judge held that a court cannot order a retraction or apology. [53] In Ottawa-Carlton District School Board v Scharf, [2007] OJ No 3030 (Ont.S.C.J.), the court directed the defendants to issuea public retraction of a defamatory news release by publishing it in two newspapers.

Neither of the defendants were a newspaper orbroadcaster. [54] I do not see any reason in this case to depart from the general rule that the court will not direct an apology or retraction from adefendant who is neither a newspaper nor a broadcaster. Solicitor and Client Costs [55] The Plaintiff seeks solicitor and client cost citing the maliciousness of the Defendant’s conduct. He cites in support Warmanand Finocchio. In those cases, the courts granted costs on a substantial indemnity against who made false allegations of childmolestation. False allegations of a similar nature having been made here.

The Plaintiff shall have his costs on a solicitor and client basis. Judgment Interest [56] Judgment interest at the rates provided under the Judgment Interest Act is awarded.

Heard on the 22 nd day of April, 2013 to the 24 th day of April, 2013. Dated at Calgary, Alberta this 6 th day of December, 2013. K. D. Nixon J.C.Q.B.A. Appearances: David J. Corry, Q.C. and Timothy Stock-Bateman Gowling Lafleur Henderson LLP for the Plaintiff No one appearing for the Defendant _______________________________________________________ Corrigendum of the Reasons for Judgment of The Honourable Madam Justice K. D. Nixon _______________________________________________________ Dioceses throughout the Reasons for Judgment has been replaced with Diocese. Paragraph 10, Archdioceses has been replaced with Archdiocese. Paragraph 13, Albert has been changed to Alberta.