Décision

Singer c. Yorulmaz						2014 QCCS 5536
JM1838    SUPERIOR COURT
CANADA
PROVINCE OF QUEBEC
DISTRICT OF			MONTREAL
No:		500-17-082047-146
DATE:	November 17, 2014
______________________________________________________________________
UNDER THE PRESIDENCY OF:				THE HONOURABLE	ROBERT MONGEON, J.S.C.
______________________________________________________________________
COLIN R. SINGER
Plaintiff
v.
AYNUR ARIFE YORULMAZ
Defendant
______________________________________________________________________
JUDGMENT
______________________________________________________________________

[1]           The Plaintiff is a lawyer, member of the Quebec Bar, practicing in the field of immigration law.  He describes himself as one of the leading immigration counsels in Canada.

[2]           The Defendant is a resident of Egypt and a former client of the Plaintiff.

[3]           After a number of exchanges of e-mails and one telephone conversation, Plaintiff and Defendant had a major disagreement which caused the termination of the lawyer-client relationship.

[4]           The Defendant then decided to post a written consumer review on a website known as www.complaintsboard.com criticizing the quality of the services offered by a website, represented by and/or associated with, the Plaintiff.

[5]           Plaintiff alleges that Defendant’s complaint is defamatory, has caused him damages which he evaluates at the sum of $100,000.00 for moral damages and at the sum of $25,000.00 for punitive damages (based on section 49 of the Quebec Charter), the whole for a total of $125,000.00

[6]           The conclusions sought read as follows:

GRANT the present motion to institute proceedings;

CONDEMN the defendant to pay the plaintiff the amount of ONE HUNDRED THOUSAND DOLLARS ($100,000.00) in moral damages

CONDEMN the defendant to pay the plaintiff the amount of TWENTY-FIVE THOUSAND DOLLARS ($25,000.00) in exemplary damages;

ORDER the defendant to pursue all efforts to remove the posting entitled “Been cheated by Private immigration Service in Quebec” from the website www.complaintsboard.com;

THE WHOLE, with costs and the legal indemnity provided by article 1619 of the Civil Code of Québec.

[7]           Plaintiff’s Motion to institute proceedings has not been served personally upon the Defendant.  The Motion was served in accordance with a judgment of Mr. Justice Mark J. Peacock, dated April 22, 2014.

[8]           On May 6, 2014, seeing that there had been no appearance, the matter was inscribed for proof an hearing.  The date of June 10, 2014 was then set for the Plaintiff to proceed by default against Defendant.  The matter came before me on June 10, 2014.

THE FACTS

[9]           The Plaintiff alleges that, after executing a contract for legal services, the Defendant, being unsatisfied with the services in question, caused the following complaint to be posted on a website known as www.complaintsboard.com reading as follows:

Posted:  2013-04-25 by Aynur Arife Yorulmaz

Been cheated by Private Immigration Service in Quebec

Contact Information:

Aynur Arife Yorulmaz

 

Egypt

 

Dear Sir, Madam

A month ago I decided to stop lingering my plan on immigration to Canada and checked internet if I am still eligible.

On many sites inclusive Canada Government Immigration site I was reported that I am not eligible till I run assessment on “www.immigration.ca” site assessment test.  I was given result as I was “ELIGIBLE” and would hear detailed assessment from them in 2 days.  It happened, I got below mail on April 1^st.

Following this mail I was told to proceed with payment and will get further details which I did and paid via internet 1^st instalment of $2950.

Then recvd mails asking me all paperwork that I have to fill.  I did prepare all form entries, meantime got some of my documents - University Diploma, National ID card myself and my two kids/dependents/my divorce certificate all translated.

My last 10 years of 2 company letters about my employment, revised CV all send on April 10, 2013.

After a week I asked when to expect file to complete signatures, photos and translated documents to start the process I was given an e-mail that Government announced Occupations on Skilled worker as of April 18 and I am not eligible so only was is to find a job and they will assist me.

I am also sending below this mail rcvd on April 22 for easy ref.

All communication is recorded and available with me.

My understanding from all what I experienced last 3 weeks that the said set up www.immigration.ca is:

*temting people on their web page assessment site

*promising the success

*pulling up sizable 1^st payment

*keeping candidate busy with paperwork

*than claiming that based on latest government announcements the case no longer strong but they will assist for 18 months based on client own work reaching a point that they can get involved

I am sending this mail TO ENSURE NOT FURTHER PEOPLE AROUND WORLD would be emotionally and financially damaged by them.

When I asked them to return the payment I made They claim they stated that I would be eligiable as per CPRP with arranging employment.

AS I SAID ABOVE all communication records with me AND I REALLY WANT TO STOP SUCH ACTIONS for Other people around the world.

Pls see below the April 1^st and April 22^nd dated mails from this company and pls revert on my mail addresses

“aynur@gizaspin.com”

aynurarife@gmail.com

for what needs to be done from my end to stop this and refund my money

Thank you

Sincerely Aynur Arife Yorulmaz-Turkish Nationality working in Egypt

[10]        With this complaint, the Defendant annexed a copy of electronic letters reading as follows:

Thank you for submitting your Immigration Assessment Questionnaire on the Canadian Citizenship & Immigration Resource Center (CCIRC) website www.immigration.ca.

 

I have carefully reviewed the information you provide and I note that you have impressive work experience and educational background.  On the basis of these and other factors, you are eligible to apply for our Canada Priority Residence Program.  Our assessment of your qualifications is based on our review and analysis of the Government of Canada’s regulations published in the Canada Gazette on December 19, 2012 and the accompanying Regulatory Impact Analysis Statement.  Our opinion is also based on my 24 years of knowledge and experience as a senior immigration lawyer in Canada.

 

Under the new program, we anticipate the government will limit the numbers of new applications submitted in 2013.  Therefore only motivated applicants, who submit a properly prepared and program compliant application when the new program becomes operational, will have the best chances for success.

 

You may also be interested to know that in addition to being one of Canada’s foremost Immigration Lawyers, I am the Managing Partner of one of the largest and fastest growing professional staffing and recruitment enterprises in North America known as Global Recruiters Network: www.grnmontreal.com.  As a service to our immigration clients, we will leverage the Global Recruiters Network to assist you to begin your employment search in Canada providing you with a comprehensive data base of Canadian Employers in your field, for your immediate use.  We will also assist you under a passive employment search to identify potential employers in Canada, at no additional charge.

 

As the managing partner of one of Canada’s largest Immigration Law Firms, I am pleased to offer you our assistance to apply for Canadian Residence.  You can find information about our program and retain my services under our convenient instalment payment plan:

 

Regular Payment Plan (4 payments): https://www.immigration.ca/opti-cprp-skilled.asp

 

The current Canadian Immigration Process is employer driven and highly complex, I would be pleased to provide you with my personal assistance and our invaluable insight by representing you through this project.  Should you have any questions, please feel free to contact me at csinger@immigration.ca or +1 514-487-2011.

 

I look forward to working with you towards your immigration project to Canada.

 

 

COLIN R. SINGER, Attorney

Certified Human Resources Professional

 

Canadian Citizenship & Immigration

Resource Center (CCIRC) Inc.

515-4999 Ste-Catherine St. West

Montreal, Canada H3Z 1T3

 

US and Canada Toll Free:  1-888-817-2011

TelL514) 487-2011

Fax (514) 487-2385

E-Mail: csinger@immigration.ca

 

Licensed Employment Search Professionals:

 

Global Recruiters Network of Montreal

515-4999 Ste-Catherine St. West

Montreal, Canada H3Z 1T3

 

Tel: (514) 788-8878

Fax: (514) 487-2385

Email: csinger@grnmontreal.com

Web: http://www.grnmontreal.com

UNQUOTE++++++++

 

QUOTE++++++APRIL 22^nd Dated mail

Dear Aynur Arife,

My name is Colin singer, Immigration Lawyer and Managing Partner of www.immigration.ca.  We currently represent your interests regarding your project to Canada.

On April 18, 2013 the Government of Canada announced plans that affect applicants’ eligibility for the new Federal Skilled Worker program. Included in these plans is a list of 24 eligible occupations.  Based on the details given in hour initial assessment with our office, your experience does not fall within one of these occupations.  As you do not have the required work experience, your only option at present is to pursue an offer of employment from a Canadian company with the help of our self directed employment search.  In order to qualify without a job offer an applicant must have at least one year of work experience in one of the below occupations.  Please review the below list and confirm with our office as soon as possible whether you or your spouse have at least 1 year of work experience in a below occupation in the last 10 years.

* 0211 Engineering managers

* 1112 Financial and investment analysis

* 2113 Geoscientists and oceanographers

* 2131 Civil engineers

* 2132 Mechanical engineers

* 2134 Chemical engineers

* 2143 Mining engineers

* 2144 Geological engineers

* 2145 Petroleum engineers

* 2146 Aerospace engineers

* 2147 Computer engineers (except software engineers/designers)

* 2154 Land surveyors

* 2174 Computer programmers and interactive media developers

* 2243 Industrial instrument technicians and mechanics

* 2263 Inspectors in public and environmental health and occupational health and safety

* 3141 Audiologists and speech-language pathologists

* 3142 Physiotherapists

* 3143 Occupational Therapists

* 3211 Medical laboratory technologists

* 3212 Medical laboratory technicians and pathologists’ assistants

* 3214 Respiratory therapists, clinical perfusionists and cardiopulmonary technologists

* 3215 Medical radiation technologists

* 3216 Medical sonographers

* 3217 Cardiology technicians and electrophysiological diagnostic technologists, n.e.c. (not elsewhere classified)

If as we believe you do not possess the required experience to meet the new rules, our pending mandate remains open for 18 months from the signing of our contract.  We will keep all your immigration documents on file for this period and advise you of any developments that might have a positive effect on your eligibility to submit an application under one of many federal and provincial programs.

Yours sincerely,

Colin Singer

—

COLIN R. SINGER, Attorney

Certified Human Resources Profeswsional

Canadian Citizenship & Immigration

Resosurce Center (CCIRC) Inc.

510-4999 Ste-Catherine St. West Montreal, Canada H3Z 1T3

Tel: (514) 487-2011 Fax: (514) 487-2385 Email: csisnger@immigration.ca

UNQUOTE+++++++

[11]        It is to be noted that at no time did the Defendant directly criticized the Plaintiff, either individuallly or in his quality as a lawyer.  Her complaint is directed against a website and the Plaintiff’s name only appears at the bottom of two e-letters annexed to the complaint where he identifies as a lawyer acting for a corporation, which, in turn appears to own the website www. Immigration.ca.  In other words, the Defendant criticizes the procedure used by the website www.immigration.ca and not the Plaintiff personally.

[12]        In addition, the evidence shows that the website www.immigration.ca is the website of a Corporation, known as the Canadian Citizenship and Immigration Resource Center Inc.

[13]        The evidence also shows that the Plaintiff has privately comunicated with the Defendant with a view to causing the withdrawal of her complaint from the website www.complaintsboard.com, but to no avail.  Evenmore, the Defendant reiterated her position in a modified complaint after receiving Plaintiff’s demand letter, by adding a “user comment” reading as follow (P-3A):

“I have been given a letter by lawyer C. Singer that they will sue me for CANADA DOLLAR 125,000 if I do not pull my complaint back since they blv (sic) it is damaging his reputation and incorrect submits (sic) of data.  Despite not agreeing to this do not want to deal with such personality I will seek help from Canadian consulate with all supporting communication in my hand.”

THE QUESTIONS

[14]        I have to decide the following:

a)   Is there a “lien de droit” between the Plaintiff and the Defendant?

b)    Are the complaints made by the Defendant libellous, defamatory or otherwise prejudicial to the Plaintiff?

c)    If so, has the Plaintiff suffered a prejudice giving rise to the damages claimed?

d)    Is there a direct link (causality) between the damages claimed and the prejudice suffered?

ANALYSIS

The “Lien de droit”

[15]        A careful review of the documentation submitted by the Plaintiff tends to show that the person being allegedly defamed is not the Plaintiff but the owner of the website, a Corporation clearly identified as such.

[16]        Defendant’s posting does not refer in any way to the Plaintiff as being the person responsible for the alleged “cheating”.

[17]        The Defendant’s complaint is addressed to the website which is owned by a legal person, distinct from the Plaintiff.

[18]        This clearly appears from the first paragraph of the letter signed by the Plaintiff and immediately following Plaintiff’s complaint, which reads as follows:

“ Thank you for submitting your Immigration Assessment Questionnaire on the Canadian Citizenship & Immigration Resource Center (CCIRC) website www.immigration.ca ”

                                                                                                                 (emphasis added)

[19]        The said letter, although signed by the Plaintiff, also demonstrates that the Plaintiff is acting in his capacity as lawyer and legal counsel to his client, the CCIRC.  Consequently, it is clear that when the Plaintiff blames and/or criticizes the attitude of the website, she acts against the client of the lawyer and not the lawyer himself.  Whether the Plaintiff is the sole beneficial owner of the said corporation makes no difference.  The Corporation should have taken this action.

[20]        The Plaintiff, herein, acts at all time as counsel for the Corporation.

[21]        Nowhere is it directly or indirectly suggested that Colin R. Singer personally is responsible for the alleged cheating.

[22]        In my respectful view, the action of the Plaintiff must be dismissed for this reason.  There is no legal connexity or “lien de droit” between the Plaintiff and the Defendant.

[23]        The Plaintiff may very well be the person behind the Corporation and its website.  But the Plaintiff has sought the protection of having a separate legal person between him and the services offered by CCIRC or perhaps also by his placement agency, Global Recruiters Network, operating unlder another website identified as www.grnmontreal.com.

[24]        The legal barriers between the operation of his businesses, on the one part, and his role as attorney or legal counsel of his client, on the other part, creates an advantage but this advantage comes with certain drawbacks.  If the Plaintiff wishes to benefit from such corporate protection, he must also live with the fact that the Corporation and himself are not the same “person”.

[25]        Consequently, the Plaintiff’s action msut be dismissed.  However, it is not inappropriate to look into what would have been the outcome of this matter had the action been instituted by the proper person.

The issue of defamation

[26]        Assuming that there would be a “lien de droit” between the Plaintiff and the Defendant, what would have been the outcome of this matter?

[27]        The only alleged defamatory statement published by the Defendant consists in the use of the words “Cheated by Private Immigration Service in Quebec”, and more specifically, by the word “Cheated”.

[28]        I do not consider that the rest of the Defendant’s complaint in P-3 is either libellous, defamatory or otherwise prejudicial.  One may be dissatisfied with the quality or efficiency of services but exprssing one’s dissatisfaction is not equivalent to defamation.

[29]        As indicated before, the Defendant’s complaint on the website www.complaintsboard.com does not mention the name of the Plaintiff, but only the name of the website www.immigration.ca.  The Plaintiff argues however that the documents annexed to the complaint P-3 showing his name and title, would cause a reasonable person to conclude that he is the one that has “cheated” or that he is directly responsible for the alleged “cheating”.  I respectfully disagree.

[30]        The Plaintiff describes the alleged defamatory words of Defendant as follows:

[15]        The title of the Defendant’s posting is “Been cheated by Private Immigration Service in Quebec” and within the review, the defendant makes the following assertions:

              “My understanding form all what I experienced last 3 weeks that the said setup “immigration.ca” is:

o    tempting people on their web page assessment site

o    promising the success

o    pulling up a sizable 1st payment

o    Keeping candidate busy with paperwork

o    than claiming that based on latest government announcements the case no longer strong but they will assist for 18 months based on client own work reaching a p oint that they can get involved”

[Sic]

[16]      In this posting, the defendant implies that:

                                     a.   The plaintiff is a cheater;

                                     b.   The plaintiff is a liar;

                                     c.   The plaintiff is dishonest;

d.   The plaintiff is defrauding his clients by falsely claiming    changes in government policy;

[31]        With great respect for the contrary view, I do not perceive the situation in the same perspective.  There is no such implication.  The criticism is directed solely at the website and not at the Plaintiff.

[32]        Surely, the Defendant’s use of the word “cheated” may sound harsh but I cannot conclude that this whole affair implies that the Plaintiff personally is a cheater, a liar, a dishonest person or that the Plaintiff defrauds his clients.

[33]        The word “cheated” carries a pejorative connotation.  Furthermore, the doctrine of “fair comment” or “truth of the statement” is not a defence to an action for defamation.  Had the Defendant specifically and publicly allege that the Plaintiff has personally “cheated” her, the use of such word would have been defamatory.

[34]        The Defendant’s allegation of having been cheated by a website is not the equivalent of accusing a lawyer of being a cheater, a liar or a dishonest person even if the lawyer would be the owner of the website, which, according to the documentation at hand, does not appear to be the case.  Again, this is not a personnalized attack on the individual or the professional.

[35]        It seems, on the other hand, that certain clients have associated the Plaintiff with the complaint of Defendant (see Exhibit P-6).

[36]        I am, therefore, of the opinion that the public use by the Defendant, of the word “cheated” was, and still is, unwarranted and that the use of such word constitutes a fault on her part.

[37]        However, I am also of the view that the Plaintiff’s qualification of the use of the said word is exagerated and cannot be extended to the degree suggested by the Plaintiff in paragraphs 15 and 16 of his Motion to Institute Proceedings.

The damages

[38]        The Plaintiff seeks $100,000.00 in moral damages and $25,000.00 in exemplary damages as a result of the Defendant’s fault.

[39]        This demand is grossly exagerated.  It flirts with frivolity and abuse within the meaning given to these words in Article 54.1 C.C.P.

[40]        Firstly, there is no evidence of bad faith on the part of the Defendant.  She has used an improper word to describe the situation.  As for her other comments, I have found that they are not defamatory.

[41]        The Plaintiff’s claim for alleged damages is not supported by any allegations in the Motion to Institute Proceedings outlining and/or detailing the prejudice suffered.

[42]        At trial, the Plaintiff’s evidence on the extent of the damages suffered and the effect of Defendant’s fault upon him was quasi non-existent.  He claims that he was “very upset and very disturbed”, alleging that his “credibility was on the line”.  His evidence on the extent of the damages allegedly suffered lasted but a few minutes, if that.  The evidence was purely and exclusively sel-serving.  No evidence of monetary loss was submitted and the “moral prejudice” alleged by the Plaintiff was certainly not demonstrated with any sufficient degree of probability to constitute conclusive proof.

[43]        No evidence of Defendant’s malicious and/or intentional behaviour has been made.

[44]        No serious causal connexion has been established by the Plaintiff between the faulty use of the word “cheated” and the damages sought, although it is the Plaintiff’s burden to prove not only the fault but also the existence of the prejudice and the causal connexion between the fault and the prejudice.  Prud’homme c. Prud’homme [2002] 4 S.C.R. 663 at paragraphs 32 and 33.

[45]        There is always a minimal connexity between the fault and the prejudice once the use of a defamatory word is used.  However, this minimal connexion carries with it the award of minimal damages, such as the proverbial pennyfarthing or the “franc symbolique”.

[46]        The fault of the Defendant is present.  Its impact is, however, not proven.

[47]        In assessing the gravity of the defamatory act, I would have to conclude that it lies at the very bottom of the scale.

[48]        So, also for its impact upon the alleged victim.  Based on the very slim evidence advanced by the Plaintiff, I must conclude that the Plaintiff has not been harmed by the fault itself.  In point of fact, the evidence does not show any impact.

[49]        The diffusion of the Defendant’s faulty message is unknown.  No data has been brought forward by the Plaintiff.  Although it is now part of the worldwide web and most probably very difficult to remove, no evidence of the number of persons having had access to the faulty complaint has been made before me.

[50]        While it is true that the Plaintiff is very active in the field of immigration law, I only have his own and very brief testimony to assess the damages.  No other witness has been heard and, of course, no cross-examination was made on the Plaintiff’s testimony.  I find, therefore, that the Plaintiff has not proven his alleged damages and accordingly, I must dismiss his claim for moral damages at the sum of $100,000.00 as well as his claim for exemplary damages at the sum of $25 000,00.

[51]        As for the demand for injunctive relief, it cannot be granted, inasmuch as the order sought is not susceptible of being executed.  To order someone to endeavour his or her “best efforts” to do something is not susceptible of execution and not susceptible of enforcement as being too subjective.  There may have been other formulations or approaches suggested by the Plaintiff which could have been more precise and compelling but it is not for this Court to re-draft the conclusions sought.

[52]        Finally, there shall be no order as to costs.  The Defendant has not appeared and has incurred no disbursements.

 

 

FOR THESE REASONS, the Court

[53]        DISMISSES the action of Plaintiff, WITHOUT COSTS.

		__________________________________ ROBERT MONGEON, J.S.C.
Me Mathieu Di Lullo
Attorney for the Plaintiff
Date of hearing:	June 10, 2014