Posts Tagged ‘Defendant’

Hilary Young, “Adding Insult to Injury in Corporate Defamation Damages”

September 3, 2013

Hilary Young (University of New Brunswick – Fredericton – Faculty of Law) has posted “Adding Insult to Injury in Corporate Defamation Damages”. Here’s the abstract:

The law of defamation treats corporations almost identically to natural persons. In most common law countries, corporations may bring defamation actions, and the elements are the same for corporate plaintiffs as for natural person plaintiffs, as are the defences. So too, are the principles for awarding damages.

Both people and corporations have valuable reputations worthy of legal protection. However, given the significantly different effect of reputational injury on humans than on corporations, the principles applied in quantifying damages to each should differ. Aggravating factors relating to emotional injuries should not be considered in assessing reputational injury to corporations, because corporations cannot suffer such injuries. Specifically, I focus on the relevance to the quantification of damages of: a) the defendant’s failure to apologize; b) the defendant’s malice; and c) the aim of vindicating reputation. Examples are drawn primarily from Canadian law but also from the laws of other common law countries.

The article first argues against treating a defendant’s failure to apologize to a corporation as a factor aggravating damages. The only relevance to a corporation of an apology is as a form of setting the record straight. Thus, an apology may mitigate damages but a failure to apologize will often have no effect on damages. Yet the law treats a failure to apologize as aggravating damages.

Similarly, the defendant’s malice is considered a factor aggravating damages, but since corporations cannot be upset, embarrassed or insulted, it is not clear that malice should be relevant to calculating their compensatory damages.

Finally, courts should no longer award damages in order to vindicate corporate reputation. The interest in human dignity may justify the vindicatory goal of defamation law. However, given that corporations have no dignity to protect, and given a number of problems associated with attempting to award damages to vindicate reputation, it is not justifiable to award corporations damages to vindicate their reputations.

Download a pdf copy of the paper via SSRN here.

Trying to fake a judgment? What were the plaintiffs thinking?

February 1, 2013


[38] I have no hesitation in concluding that an award of full indemnity costs is required in the circumstances of this case. I find that the plaintiffs’ conduct, in faking a judgment of this court, constitutes a scurrilous and fraudulent attack on the administration of justice. The plaintiffs’ actions amount to a contemptuous and reckless disregard for the judicial process and were calculated to obstruct or interfere with the due course of justice in these proceedings. The plaintiffs’ behaviour was “reprehensible, scandalous and outrageous.” Such reckless attacks on the administration of justice clearly constitute conduct requiring chastisement and deterrence.

[39] I find that the defendants are entitled to full indemnity costs, payable by the plaintiffs D’Souza and D’Gama forthwith. Costs are awarded as follows:

Woldanskas $14,974.60

Linton/Jagielski $10,659.35

Gills $14, 617.97

inclusive of disbursements and HST.

[40] The plaintiffs are prohibited from taking any fresh step in these proceedings until these costs have been paid in full.

Master Dash Order

[41] There is a subsidiary issue involving an order of Master Dash on April 26, 2011, obtained without notice, granting leave to the plaintiffs to register a certificate of pending litigation against the Property (the CPL order). No CPL has been registered as yet.

[42] The plaintiffs have refused or been unable to produce the original of Master Dash’s order. The court record apparently contains no original order or endorsed motion record.

[43] It appears that the CPL order of Master Dash may also be a fake.

[44] In any event, it was obtained without notice. The noting in default of the Gills was improper and constituted sharp practice.

[45] In the circumstances, my order shall issue setting aside the CPL order of Master Dash dated April 26, 2011.

Read the decision of Penny J. in John Joseph AKA John D’Souza and Peter D’Gama v. Ritchie James Linton, et al. 2013 ONSC 70  here.

Of Parsimony and Ockham’s Razor

January 31, 2012

The Ockraz Logo

“I offer no apology; I am the victim here, not a miscreant.”~ Joseph Rakofsky

Occam’s razor, also known as Ockham’s razor, or in Latin referred to as lex parsimoniae (the law of parsimony, economy or succinctness), is the principle that among competing hypotheses, the one that makes the fewest new assumptions usually offers the correct one, and that the simplest explanation will be the most plausible until evidence is presented to prove it false.

My co-defendant and local counsel in the Rakofsky v. The Internet lawsuit, Eric Turkewitz has  posted a new update #4 which includes a new court filing by the plaintiff, Joseph Rakofsky:

Update #4, 1/31/12 – Rakofsky’s Reply to other defense opposition to the motion in the Appellate Division to lift the stay for him only. No response to our papers (which were served 1/26/12, one day before they were due to be served): RakofskyReply. The opposing papers to which he refers are here: Teschner  (Yampolsky) Opp and Weissman (Reuters) Opp

Some may describe Rakofsky’s Reply Affidavit and legal writing in uncharitable terms:

bewildering

Delphic

cryptic

enigmatic

fathomless

impenetrable

incognizable

inconceivable

inscrutable

mystifying

perplexing

puzzling

sibylline

unfathomable

ungraspable

unimaginable

unintelligible

unknowable

Not I. I merely report the facts in evidence. Yet, the correct adjective escapes me…Ah, yes, “incomprehensible”, or as in Rakofsky’s own words:

The subtleties of Rakofsky’s formidable legal argument and rhetorical flourishes are exemplified in the following precatory phrasing:

As Ken @ Popehat remarked on Twitter:

par·si·mo·ni·ous (pär s -m n – s). adj. Excessively sparing or frugal. par si·mo ni·ous·ly adv. par si·mo ni·ous·ness n.

Whatever one may think of Mr. Rakofsky or his lawsuit, one cannot call him parsimonious in his prose.

As Edmund Burke once said:

Mere parsimony is not economy. Expense, and great expense, may be an essential part in true economy.

Or, in the immortal words of Titus Livius:

There is nothing worse than being ashamed of parsimony or poverty.

The day of judicial reckoning fast approaches….

Previous Related Posts:

Zen and the Art of Blawging Maintenance

November 7, 2011
Everything Zen

Norm Pattis wrote a post a few months ago entitled: Updated: Rakofsky: Is Internet Mobbing A Tort? charitably offering up to the Plaintiff in the Rakofsky v. Internet litigation the makings of a new nominate tort: (more…)

The Rakofsky Effect: It Actually Works!

October 26, 2011

1. My post coining the phrase based upon my reply to Nathan Burney on Twitter:

2.   Someone else then submits the phrase to The Urban Dictionary:


3.  Rakfosky then confirms the hypothesis and proves the theory by filing a new Notice of Motion and supporting Affidavit .As Eric Turkewitz, (co-defendant and local counsel assisting pro hac vice counsel Marc Randazza, representing 20 of the Rakfosky defendants) notes:

[Rakofsky] has now filed a motion to amend the complaint a second time, with a 300-page whopper including 1,248 paragraphs. He has 78 causes of action and demands, and, if my calculations are correct, he demands $145,000,000 in damages.

Part 1 of the proposed Second Amended Complaint is here and Part 2 is here.

4. Finally, it appears I am no longer the lone Canadian in this internet version of Franz Kafka’s The Trial. Welcome Canadian Lawyer Magazine and Reuters Canada as co-defendants! (see page 167 of the proposed Second Amended Complaint).

See also, Ken’s post at Popehat.com: The Tort of Internet Mobbing Is Perfect For Suing The Internet.


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