This post was written prior to our January 2017 merger, under our previous firm name, MacPherson Leslie & Tyerman LLP.
Sometimes, seemingly minor grievances can result in the most bizarre over-reactions. Very often, those bizarre over-reactions are amplified through the internet. And, in a recent case from British Columbia, one such amplified over-reaction resulted in a $221,000 damages award.
The case is called British Columbia Recreation and Parks Association v. Zakharia, 2015 BCSC 1650. The story started when John Zakharia, a personal trainer, and an unknown associate, “Jane Doe”, took to the internet to air their grievances with the not-for-profit British Columbia Recreation and Parks Association (the “BCRPA”) and its Chief Executive Officer, Suzanne Strutt. This case addresses the all-too-common problem of reputation attacks online and showcases several of the legal claims that victims of those attacks can make against the attackers.
The Background Story
The BCRPA operated a certification program to recognize fitness professionals as “fitness leaders”. In 2013, Mr. Zakharia enrolled in the program, and his enrolment involved signing a code of conduct. After his first year in the program, he neglected to pay his annual renewal fees. Despite his request, the BCRPA refused to waive or reduce the renewal fee or the late fee. Citing Mr. Zakharia’s refusal to pay his fees and the “discovery of public comments about individuals associated with the BCRPA”, the BCRPA blocked Mr. Zakharia’s access to his online BCRPA account. Mr. Zakharia subsequently paid his renewal fees and again signed a code of conduct.
Not long after, the BCRPA discovered further disparaging comments. After their request for an explanation received a hostile response, the BCRPA terminated Mr. Zakharia’s membership and refunded the fees he had previously paid to the BCRPA.
Not happy with this, Mr. Zakharia and Jane Doe took to a website (www.BCfit.ca), a blog, and YouTube, and made disparaging comments about Ms. Strutt and the BCRPA, including accusing them of bullying, extortion and abuse of power and claiming that Ms. Strutt victimized Mr. Zakharia because he had a visual impairment. Mr. Zakharia also represented online and to third parties that he was “certified” by BCRPA, going so far as to procure or create a fake certificate.
Jump forward to a little more than a year later and the Supreme Court of British Columbia has ordered Mr. Zakharia to pay damages caused by his actions, awarding $115,000 to Ms. Strutt and $106,000 to the BCRPA. The renewal and late fees would have totaled $190.
The Legal Issues
The bulk of the damages flowed from claims for defamation. The court had little trouble in finding that the plaintiffs had shown that Mr. Zakharia had published statements about Ms. Strutt and the BCRPA which were likely to harm their reputation in the eyes of reasonable people. The court went on to briskly dismiss Mr. Zakharia’s attempted defenses of justification (i.e. “truth”), fair comment, and responsible communication as having no merit.
All but $13,000 of the damages came from the defamation claims. Interestingly, punitive damages of $15,000 for Ms. Strutt and $10,000 for the BRCPA were awarded against Mr. Zakharia for his high-handed conduct and because the court said it “must make it clear that the internet cannot be used to defame”. The court also issued a permanent injunction preventing Mr. Zakharia from making further defamatory statements (an interlocutory injunction had also been granted earlier in the litigation process).
In addition to a successful claim of defamation, the court found that the plaintiffs had made out five additional causes of action:
- Passing off for use of unregistered trademarks to attempt to “misrepresent and confuse”;
- Trademark infringement for use of the registered trademark “BCRPA”;
- Breach of the Competition Act for making false and misleading statements to advance commercial interests, related to Mr. Zakharia’s false claims of being certified by the BCRPA;
- Injurious falsehood (a tort similar to defamation) for the comments made about the BCRPA; and
- Conspiracy to injure for Mr. Zakharia and Jane Doe’s coordinated efforts to harm the reputation of the BCRPA and Ms. Strutt.
These remaining causes of action resulted in additional injunctions against further unlawful action, a transfer of the www.BCfit.ca domain name to the BCRPA, and the remaining $13,000 of damages. These successes illustrate that, when your reputation is under attack online, there are usually several causes of action available to protect your reputation.
This case is one of relatively few reported decisions on online reputation attacks but, in our experience, the factual scenario of a disgruntled person taking their grievances online is not rare at all. Addressing harmful comments with swift but well-advised legal action is often the best option. However, organizations can be proactive by getting in a position to deal with attacks on their reputation online, such as by having a workplace social media policy, or imposing some other code of conduct, and registering their trademarks.