Two businessmen who waged a vicious and relentless internet smear campaign against a former associate must pay their victim $700,000 in damages, Ontario's top court affirmed on Wednesday.
In dismissing appeals from Saul Rabinowitz and Moishe Bergman, the court found the damages awarded Ronald Rutman were reasonable given the egregious nature of what he endured.
"This is a case of serious, sustained, and baseless internet defamation," the Appeal Court ruled. "Rabinowitz's defamatory activities persisted over a lengthy period. They were unrelenting, insidious and reprehensible."
The case arose in 2007 when Rutman, a Toronto chartered accountant and successful businessman, had a falling out with the others. They eventually agreed to resolve the dispute and all signed on to the agreement, but Rabinowitz continued to stew.
Court records show Rabinowitz used various e-mail accounts to e-mail Rutman's partners and others in which he alleged among other things that Rutman was involved in money laundering and tax evasion. Under different guises, Rabinowitz also posted to a website containing reviews of professionals in which he alleged Rutman was a "thief and a bastard," a tax cheater, corrupt, and a "crook who should be reported," records show.
Each time Rutman complained and the website removed the posting, another would pop up.
Rutman, acting on court orders that allowed him to identify the originating internet addresses of the website postings, sued Rabinowitz and Bergman for libel.
At trial, Rabinowitz admitted the internet campaign was malicious and aimed to make Rutman "feel the pain," court records show. Bergman denied any part. Rabinowitz argued that what was said about Rutman was in fact true – a position he only abandoned part way through trial.
In November 2016, Superior Court Justice Michael Penny held both men liable. He ordered them to pay Rutman $200,000 in general damages. In addition, he ordered Rabinowitz to pay a further $450,000 in aggravated and punitive damages. He also awarded $50,000 in punitive damages against Bergman.
On appeal, Rabinowitz maintained Penny's damages award was "irrational and incoherent." His argued Rutman's reputation was not in fact harmed. Similarly, Bergman argued Rutman was the "epitome of a thick-skulled plaintiff" whose reputation survived unscathed.
In upholding the awards, the Appeal Court said Rutman was under no obligation to prove any actual loss or injury. The defamatory language used in targeting him was enough to incur general damages.
This is especially true in the internet age, which allows instantaneous and far-reaching communications, the court found. Additionally, the distress they caused was severe, the court said.
"(Penny) found that the insidious nature of Rabinowitz's conduct compounded Rutman's suffering and angst," the Appeal Court ruled. "A significant aggravated damages award was clearly justified."
Making matters worse, the Appeal Court noted, was that Rabinowitz admitted he had acted maliciously, never apologized, and maintained for more than seven years that his ugly allegations were somehow true.
No other libel case is particularly helpful on the issue of the amount of damages, the court said.
"No two libel cases are the same," the Appeal Court found. "The assessment of damages in each case must account for a myriad of idiosyncratic factors particular to the parties, the misconduct in question and the conduct of the litigation."