April 27, 2020
Sikhs for Justice v. The Republic of India 2020 ONSC 2628
Defendant, ANI Media Private Ltd. moved for an order (pursuant to s. 106 of the Courts of Justice Act, R.S.O. 1990, c. C.43 and Rule 21.01(3) of the Rules of Civil Procedure, R.R.O 1990, Reg.194) dismissing or permanently staying this defamation action, brought by the non-profit organization, Sikhs for Justice (SFJ), on the grounds that the Ontario Superior Court of Justice does not have jurisdiction over its subject matter, or that Ontario is not the convenient forum.
SFJ alleges in its statement of claim that the Republic of India, with various media allies in India including ANI Media, have engaged in a campaign of defamation against SFJ.
Because the alleged defamatory words were published in online forums that are accessible to persons in Ontario, SFJ pleads that thousands of individuals within Ontario have seen and/or heard the defamatory words said to be contained in the three identified articles (including the ANI article), thereby damaging SFJ’s reputation in Ontario, for which it seeks damages. SFJ also seeks a permanent injunction restraining the defendants or any other persons acting on behalf of the defendants from publishing, posting or reposting any communications defamatory to SFJ.
The nature of the claims made by SFJ in this action are such that it would not be reasonably foreseeable to ANI Media that it would be sued for them in Ontario. SFJ’s claims are tied to an alleged malicious smear campaign that threatens SFJ’s viability. SFJ offers no admissible evidence of harm or of the threats to its viability; rather, it relies solely on allegations and inferences of harm to its reputation and brand. The alleged smear campaign is said to have been orchestrated by the Republic of India, and to have originated and been carried out in India with the assistance of Indian media outlets, only one of which is ANI Media. SFJ seeks to stop the campaign from being carried out through a permanent injunction and to undo the alleged harm caused to its reputation by that campaign. The presumptive connecting factor of the alleged defamation in Ontario by the ANI article having been accessed and downloaded by two individuals connected to SFJ in Ontario is rebutted by these other considerations.
SFJ pleads that thousands of individuals within Ontario have seen and/or have heard the defamatory words (including the ANI defamatory words), thereby damaging SFJ’s reputation in Ontario.
SFJ’s evidence proffered to substantiate this allegation is that of a Toronto-based employee who is one of the directors and the affiant for SFJ on this motion (Mr. Jatinder Singh Grewal) and, on information and belief, the evidence of an SFJ volunteer who is said to have done the same (Mr. Ravinder Singh). Both are said to have downloaded and viewed the ANI Article from the Business Standard in Ontario.
The defendants challenge the sufficiency of SFJ’s assertions, noting that the identity of…persons in Ontario said to have downloaded and read the ANI Article from the Business Standard website and to have called to discuss it and cancel their donations has not been disclosed. The defendants argue that this is not admissible evidence on a contested evidentiary point on a motion, since the source of the affiant’s “information” (the names of the donors) is not disclosed.
In the absence of the identification of the source of information said to have come from donors, the court agreed that Rule 39.01(4) precludes SFJ from relying on that evidence for purposes of this motion. That evidence, information from donors that they accessed and read the ANI article and that it caused them to be concerned, is clearly hearsay.