'They don't have to believe it. They just have to wonder whether it's true.'
In a profession where trustworthiness is essential to a practitioner’s earning capacity and reputation, the campaign of internet defamation and harassment Jonathan Sommer experienced was like “having a massive weight on your shoulders, all the time,” he says.
Sommer’s ordeal originated when he litigated a case involving an allegedly forged painting and culminated in June with a ruling in his favour from Superior Court Justice David Corbett.
“As the judge put it in the judgment, ‘the facts are unusual.’ I thought that was a beautiful understatement,” says Sommer.
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Sommer is a lawyer specialized in art forgery. He represented Barenaked Ladies bandmember Kevin Hearn in a lawsuit against Toronto’s Maslak McLeod Gallery, which sold Hearn “Spirit Energy of Mother Earth,” a 1974 painting by Norval Morrisseau. Hearn, who purchased the piece in 2005, believed it was a fake.
In 2018, Superior Court Justice Edward Morgan concluded there was an equal chance that the painting was real and that it was a forgery and he dismissed Hearn’s action. But the Court of Appeal reversed the decision the next year. Hearn had agreed to purchase an authentic Morrisseau, as well as a valid provenance statement attesting to its authenticity. The gallery provided two provenance statements, but the prior owners listed on them could not be found or would not confirm they had owned the painting. The Court of Appeal said that, because Hearn had agreed to a painting and a valid provenance statement, and the statements had turned out to be false, he did not get what he paid for.
John Goldi, an art collector and seller, was a proposed intervenor in Hearn v. Maslak-McLeod Gallery Inc. But the court rejected his participation because of his “extra courtroom conduct," which included sending threatening letters to Hearn’s expert witness and “aggressive inappropriate conduct” toward Hearn and Sommer, said Justice Corbett’s ruling.
Sommer argued in his defamation case that, as owners of several paintings which would also be implicated if Hearn’s Morrisseau was ruled a fake, Goldi and his wife, Joan Goldi, had a “significant financial interest” at stake.
What Justice Corbett called the Goldis' “systematic campaigns of vilification and harassment” began in 2013 and was also directed at an academic expert witness involved in the case.
“Different people fight in different ways,” says Sommer. “Some people choose to go to court against you. Other people maybe will post something about their legitimate arguments with you. But [the Goldis] resorted to large numbers of lies, primarily about me.”
The Goldis published allegations that Sommer was a key member of an unlawful conspiracy to falsely claim that genuine Morisseau artwork is fraudulent. In hundreds of pages of articles, the Goldis accused Sommer being a criminal, liar and a fraud, of not being a lawyer, being involved in terrorism, working like a mafia consigliere, and being involved in physical assaults, murders and illegal hacking, among other things. Most offensively to Sommer, they also accused him of "committing racist cultural genocide" against Indigenous people. They called and wrote to his clients and showed up to his court appearances.
The intent of the Goldi’s campaign, said Justice Corbett, was to malign Sommer as a lawyer and drive him out of his field.
One client dropped Sommer because of the Goldi’s harassment, but he says the defamation’s true impact on his business is impossible to quantify.
“I had several other clients who were targeted by the Goldis, but they chose to stick with me, despite the harassment,” he says. “I think the big question, and one that's impossible to answer, was how many people would have hired me, but didn't.”
“As a lawyer, the ability of your clients to trust you is critical.”
And as a litigator, clients often come to him for relief from a chaotic and stressful situation, he says. The last thing they need is to be the target of harassment by people intent on destroying their lawyer’s reputation.
Aside from harming the lawyer targeted, internet defamation also creates access-to-justice problems for clients, says Sommer. Lawyers may ask themselves, “why would I take this person on as a client when taking them on means that the people on the other side of the case – or connected to the case – are going to make my life a living hell in a very personal way?”
At one point in the proceedings, Sommer says Justice Corbett asked him whether he thought anyone actually believed the conspiracies claimed by the Goldis.
“They don't have to believe it,” he says. “They just have to wonder whether it's true, and then they can just go to another lawyer and hire them.”
Sommer’s claims against the Goldis for internet defamation and harassment began in 2014. The Goldis responded with an anti-SLAPP motion, which are brought in defamation cases to allege that a plaintiff is attempting to chill public participation on a matter of public interest. The court granted Sommer’s interim injunction, and then ordered the Goldis before the court after they allegedly failed to comply with it. Facing contempt proceedings for failure to comply with the injunction, the court issued a bench warrant to get the Goldis to attend.
The Goldi’s position was that no other aspects of the litigation should have proceeded until the court dealt with their anti-SLAPP motion, but Justice Corbett notes they had “taken no steps to advance that motion.” Sommer served motions of summary judgment to determine the contempt allegations, the anti-SLAPP motions, and the underlying defamation claims. Then, COVID hit.
The court had to reschedule, and the Goldis refused to participate in any of the subsequent proceedings.
The court struck the Goldis anti-SLAPP motions for failure to prosecute them and struck their statements of defence for failure to communicate, failure to deliver an affidavit, failure to attend mandatory mediation, failure to comply with a court order, failure to pay costs ordered, and for bringing and not proceeding with an anti-SLAPP motion and motion to dismiss.
In June of last year, Justice Corbett granted judgment on the defamation in favour of Sommer, awarded damages of $41,600, and reserved judgment on general, punitive and aggravated damages and costs. The judge warned the Goldis that if they also failed to attend the next hearing, on Dec. 3, he would issue a warrant for their arrest. They did not attend, and when police showed up to arrest them, the Goldis – who are in their 80s – refused to cooperate and the police told court staff they were unable to execute the warrant.
In a decision released June 27, Justice Corbett awarded general damages of $300,000, aggravated damages of $100,000, punitive damages of $50,000, and $24,119 in costs.