Uncle’s defamation lawsuit dismissed, no evidence of text message

The Ontario Superior Court of Justice has dismissed a defamation lawsuit filed by a man against his two nephews, ruling there was no genuine issue requiring a trial¹. The decision, released on December 13, 2024, by Justice J.T. Akbarali, concluded a summary judgment motion brought by the defendants, Yasir Shakur and Saiyaf Alli, against their uncle, Ejjaz Alli. The case centered on allegations of a defamatory text message and a subsequent conversation, which the court ultimately found did not occur as the plaintiff claimed.

The plaintiff’s legal action originally contained four categories of alleged defamatory statements, but by the time of the motion, it had been narrowed to two specific claims. The first was that Dr. Shakur had sent a text message to Mr. Alli, his cousin, in May or June of 2019, communicating that the plaintiff had raped a member of their family. The second claim was that Mr. Alli later repeated the contents of this alleged text message during a telephone call to the plaintiff’s sister, Bibi Nazeeman Mohamed, who is also the defendants’ aunt. The plaintiff had abandoned his other initial claims, including an alleged 2013 statement and other unspecified false statements.

The court noted that this lawsuit was running parallel to a second defamation action, also commenced by the plaintiff. That second action was filed against his nephew, Mr. Alli, and Mr. Alli’s mother, Bibi Nesha Rahamatun Alli, who is the plaintiff’s sister-in-law. In that separate case, the plaintiff claims Mrs. Alli made false statements on August 1, 2021, accusing him of sexually assaulting her on two occasions. He also alleged that either Mrs. Alli or Mr. Alli sent a defamatory email from the email account of his brother, Ashraf Alli, who was Mrs. Alli’s husband and Mr. Alli’s father. In the pleadings for that second action, a significant admission was made. The plaintiff admitted to having a sexual relationship with Mrs. Alli, his brother’s wife, but alleged the relationship was consensual. In response, Mrs. Alli filed a counterclaim against the plaintiff, suing him for damages arising from the alleged sexual assault. This complex and contentious family background formed the backdrop for the motion before Justice Akbarali.

In the case at hand, the defendants, Dr. Shakur and Mr. Alli, sought to have the claims against them dismissed entirely through a summary judgment motion. They argued on a narrow but decisive point: that there was no genuine issue requiring a trial because the alleged defamatory statements were simply never made. Their position was that the evidence would allow the court to conclude that the text message was never sent, and the conversation repeating it never happened.

The plaintiff argued against summary judgment, suggesting that the issues in this case overlapped substantially with the second action. He claimed that granting summary judgment here would be inefficient, create a risk of inconsistent factual findings between the two cases, and effectively amount to only a partial summary judgment. Justice Akbarali firmly rejected this argument. The judge pointed out that the plaintiff himself had made the “deliberate choice” to file two separate actions against overlapping parties. Furthermore, in the year since a timetable for the motion was set, the plaintiff had taken no steps to consolidate the two actions or have them heard together. The court found that the plaintiff had to live with his procedural choices and could not use them to block the summary judgment motion.

The court first examined the existence of the alleged text message. The plaintiff had claimed in his pleadings that it was sent in 2019. However, during his cross-examination, he insisted the text was sent after June 23, 2020, when he sent a message to a family WhatsApp group. That message, which the court noted appeared “out of place,” made reference to Dr. Shakur’s ex-wife, and the plaintiff theorized Dr. Shakur sent the defamatory text in anger. This theory was inconsistent with his own pleading.

Both defendants provided evidence on the matter. Dr. Shakur denied ever sending such a text message. Mr. Alli denied ever receiving such a text message. They both stated their text communications were sporadic, consisting of condolences and birthday invitations, especially after not having a close relationship for ten years. In response to undertakings, both Dr. Shakur and Mr. Alli confirmed they had searched their phones and had no text messages between themselves for the period of 2020 to August 2021.

The only evidence supporting the text’s existence came from the plaintiff’s sister, Mrs. Mohamed. She stated in her evidence that Mr. Alli told her about the text in a phone call. She had never seen the text herself. The court identified this as hearsay, which is inadmissible to prove the truth of its contents, in this case, that the text actually existed. The judge noted that the actual and best sources of evidence, the alleged sender and receiver, were available and both denied the text’s existence. Justice Akbarali concluded: “I find that no text was sent by Dr. Shakur to Mr. Alli in which Dr. Shakur called the plaintiff a rapist. The action against Dr. Shakur is thus dismissed.”

With the claim against Dr. Shakur dismissed, the court turned to the second claim: whether Mr. Alli had defamed the plaintiff by telling Mrs. Mohamed about the (now determined to be non-existent) text. This created a direct conflict in evidence. Mr. Alli denied the conversation, while Mrs. Mohamed insisted it happened on August 3, 2021. Faced with this “limited credibility contest,” Justice Akbarali determined that a fair and just decision could not be reached on the paper record alone. The judge invoked the enhanced fact-finding powers granted by the Supreme Court of Canada in Hryniak v. Mauldin, which allow a judge to hear limited oral evidence on a summary judgment motion to weigh evidence and evaluate credibility.

The court ordered Mr. Alli and Mrs. Mohamed to testify in person on the discrete issue of their telephone conversations between August 1 and August 3, 2021. This oral evidence was heard on December 11, 2024. After hearing from both witnesses, the judge made a critical credibility finding. Justice Akbarali found that Mrs. Mohamed’s evidence raised “serious concerns about her objectivity as a witness.” The judge described her as an “apologist for the plaintiff,” noting she attempted to minimize the plaintiff’s admitted sexual relations with his brother’s wife. Furthermore, when questioned about the plaintiff’s “mean-spirited” WhatsApp comment about Dr. Shakur, Mrs. Mohamed “claimed not to know who the plaintiff meant by ‘the doctor,’ when it is apparent on its face that the comment referred to Dr. Shakur.” The court found her evidence on these points was not credible and she “did not demonstrate herself to be an impartial witness.”

Conversely, the judge found Mr. Alli’s evidence did not raise these credibility concerns and preferred his account. The court found that Mrs. Mohamed was “mistaken” in her belief. The judge did find that a text message was mentioned in a phone call on August 1, 2021. However, this was during the call where Mr. Alli was helping his sick father, Ashraf Alli, communicate his wife’s sexual assault allegations to Mrs. Mohamed. Mr. Alli’s evidence, which the court accepted, was that his father, who was ill with brain cancer and had difficulty speaking, had “made reference to a text message” during that call, but it had nothing to do with Dr. Shakur or Mr. Alli. The judge concluded that Mrs. Mohamed had likely confused this with her later, separate allegation against Mr. Alli. Based on this finding, Justice Akbarali concluded, “Because I find that Mr. Alli never made the alleged defamatory statement, I dismiss the claim against Mr. Alli.”

Having dismissed the entire action, the court then addressed the issue of legal costs. The defendants, as the successful parties, were presumptively entitled to their costs. The court noted that the defendants had made two offers to settle the case, both of which were better for the plaintiff than the final judgment of dismissal. The first offer, made in August 2022, was for a simple dismissal with no costs, which the plaintiff did not accept. The second offer, from October 2024, was for a dismissal with the plaintiff paying partial costs of $22,230 plus HST and disbursements. Because the plaintiff rejected these offers and ultimately lost the case entirely, the court found it was just to award substantial indemnity costs to the defendants from the date of the first offer. While the defendants’ bill of costs sought over $48,000 on a substantial indemnity basis, the judge found this was outside the “reasonable expectations of the plaintiff.” After considering all factors, Justice Akbarali fixed the defendants’ costs at $30,000, ordering the plaintiff to pay this amount to his nephews within thirty days.

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