Case among the first Google review defamation claims involving a law firm, says lawyer
An Ontario Superior Court has awarded a law firm damages for defamation after a disgruntled former client posted a scathing Google review and refused to take it down for three months.
D’Alessio Romero Law represented the defendant in a motor vehicle accident matter, including tort and accident benefits claims, beginning in 2016. Four years later, there was a fundamental breakdown of the solicitor-client relationship, and the defendant got a new lawyer.
After their relationship ended, the defendant posted the review, calling lawyers at the firm “incompetent,” a “paralegal posing as a lawyer,” “highly negligent,” “highly unprofessional and disorganized,” “not trustworthy,” and accused the firm of deliberately causing delays by refusing to transfer her files. “You are shady, pathetic and awful lawyer,” she said of one of the firm’s lawyers.
The firm responded with a libel notice, calling on the defendant to “correct or retract” her post before 5 pm Jan. 25, 2021. In her response, in which she refused to take down the post, the defendant said that truth is an absolute defence to defamation and “No one is punished for speaking the truth, even if it is an ugly truth.”
The firm commenced the action on Jan. 25. A little under three months later, the defendant removed the review.
“There hadn't been many defamation cases in which there was a Google review against a law firm,” says Ahmed Mohamed, who represented the plaintiff and is also a lawyer at the firm. “We believe it's now created a precedent in terms of general damages in a defamation case based on a Google review.”
The case establishes a framework for Google-review-based defamation suits, he says.
Ontario Superior Court Justice Phillip Sutherland laid out the three-part test to establish defamation. One, the words referred to the plaintiff. Two, the words were published. And three, the words were defamatory as they would lower the plaintiff’s reputation in the eyes of a reasonable person. Satisfaction of the test on a balance of probabilities leads to a presumption of falsity and damages, and the plaintiff does not need to prove “actual loss or injury.” The onus shifts to the defendant, who must advance a defence or be held liable.
The only issue, said Sutherland, was whether the words in the Google Review were defamatory. Sutherland decided they were. Based on the review, a reasonable person would conclude that they should not use the lawyers at the firm, which reduced the plaintiffs’ professional reputation, he said.
The defendant, who was self-represented, did not plead or advance any relevant defence. She argued that the action was an abuse of process, that the plaintiffs did not suffer any damages, and that the plaintiffs failed to mitigate their losses and damages. In oral submissions, she said that the anti-SLAPP provisions in s. 137.1 applied to the case. Under s. 137.1, a judge may dismiss a defamation claim if it arises from an expression related to a matter of public interest. But Sutherland did not entertain the defendant’s argument because she had not brought a motion and filed the necessary affidavit material.
Sutherland concluded that, as lawyers, the plaintiffs rely on their reputation, and the defendant’s allegations of incompetence, negligence, untrustworthiness, and being shady were defamatory and a direct assault on the plaintiff’s “legal and business acumen and reputation.” The review was live for almost three months, the defendant refused her opportunity to apologize and take it down, and her statements were available to a “broad berth of viewers,” he said.
The defendant told the court that she was an unemployed single mother on social assistance, but Sutherland said that her financial situation does “not shield her from an appropriate damages award.”
“A clear message must be made that such form of comments on an internet platform do not insulate someone from legal repercussions, such as an award of damages. Online comments are easy to do and seem distant and not accountable. But they are not.”
Sutherland ordered the defendant to pay $20,000 in damages and $9,500 in costs, plus interest.