Court File and Parties

COURT OF APPEAL FOR ONTARIO

DATE: 20220314 DOCKET: M53145 (C69160)

Pardu J.A. (Motion Judge)

BETWEEN

Elisa Romero Hategan Plaintiff (Appellant)

and

Elizabeth Moore Frederiksen and Bernie Farber Defendants (Respondents)

Counsel: Joseph Kary, for the appellant Alexi Wood and Lillianne Cadieux-Shaw, for the respondent Elizabeth Moore Frederiksen Mark Freiman, for the respondent Bernie Farber

Heard: February 28, 2022, by video conference

Endorsement

[1] The appellant moves for an order setting aside the Registrar’s dismissal of her appeal and asks for extra time to perfect the appeal.

[2] The respondents ask that the motion be dismissed. They submit that the appeal has no merit, and that the appellant has not adequately explained the delay.

The Judgment below

[3] On February 3, 2021, the motion judge dismissed the appellant’s claims on a summary judgment motion, awarded judgment for damages for defamation against her and granted a permanent injunction against her. The terms of the injunction restrained the appellant from making or publishing any statement referring to the respondent Elizabeth Moore Frederiksen [1] and required her to remove all online statements she has made about Frederiksen, release all domain names she had created using Frederiksen’s name and refrain from using any online identifier containing that name. The appellant served a Notice of Appeal on March 3, 2021, and filed it two days later. On March 26, 2021, the motion judge ordered her to pay costs and confirmed the permanent injunction.

The nature of the action

[4] Both the appellant Elisa Romero Hategan and the respondent Frederiksen are former active members of Heritage Front, an extremist neo-Nazi group. Each says that they had a difficult childhood or adolescence. They both became disillusioned with the group and left. After leaving, both women have spoken publicly against extremism and hate groups. The appellant feels that Frederiksen’s public persona amounts to an an appropriation of the appellant’s own identity as an anti-hate speaker. The appellant feels that Frederiksen’s appearance and her religious and sexual identity have been assumed to steal the appellant’s “life and accomplishments”.

[5] The appellant relied upon a public statement made by the respondent Bernie Farber for the foundation of her action against him. On September 19, 2017, Farber appeared on a television show, The Agenda, and made the following statement:

By the way [Frederiksen] was one of a couple women that were involved in the Heritage Front, both of whom, actually, [Frederiksen] and another young woman by the name of [Hategan], both of them ended up being heroes in terms of how they were able to take themselves out, how they were able to work the system, to basically shut down the Heritage Front. And so in this particular case, its’s [sic] kind of interesting that the women were the heroes in shutting this down. There were others involved as well, the Bristol Affair, he was the mole. All of this came together as a result of the women who full timely took a stand and said, we’re not going to deal with this anymore.

[6] The appellant sued both respondents for damages for the torts of wrongful appropriation of personality, civil conspiracy, injurious falsehood, negligence and unlawful interference with economic interests. She did not sue for defamation.

Positions of the parties before the motion judge

(1) The appellant’s position

[7] The appellant took the position that summary judgment was not appropriate because there were “major credibility issues” that required a trial to resolve the many inconsistencies and contradictions in the voluminous evidence filed on the motion. The legal issues were complex and it would be unfair to proceed by way of summary judgment before documentary production. The appellant asserted that Frederiksen lifted facts, storylines and key pieces of the appellant’s life story and falsely passed them off as her own “lived experience” for commercial profit. The appellant believes that she was the “only young woman who played any role whatsoever in the collapse of the Heritage Front”.

[8] The appellant asserted that Farber and Frederiksen worked together to cultivate the latter’s brand, thereby appropriating the appellant’s life story. The appellant argued that since Farber filed no evidence on the motion, his motion for summary judgment should be dismissed.

[9] The appellant argued that the respondent Frederiksen’s motion for summary judgment on the counterclaim for defamation should be dismissed for the same reasons.

[10] The appellant asserted that there were genuine issues requiring a trial of these claims, including whether limitation periods barred any of the claims and other defences.

(2) The respondents’ positions

[11] The respondents took the position that a credibility assessment was not required. Even if the appellant’s evidence was accepted as true, which they denied, the evidence did not support any actionable claim. They took the position that the appellant’s claim was based on “speculation, unfounded allegations, and conspiracy theories.” They argued that the elements of the causes of action asserted by the appellant were not supported by evidence. They argued that Frederiksen was entitled to speak about her own life experiences. There was no evidence that Frederiksen had misrepresented her own life experiences in any material respect. The claim for civil conspiracy was similarly based on an allegation that the respondents had “made and endorsed false representations” that Frederiksen had undergone experiences with the Heritage Front like those asserted by the appellant. They argued there was no evidence of any agreement between the respondents that could amount to a conspiracy and no evidence of any unlawful act against a third party which was intended to target the appellant. They argued that there was no duty of care owed that could found a claim in negligence, nor any standard of care nor breach nor damages identified.

[12] The respondent Farber reiterated that his comments on the television broadcast were incapable of supporting the causes of action alleged. There was no other evidence capable of supporting any of the pleaded torts and no evidence of any damages arising from any alleged acts by him. There was no evidence of false statements by Farber or any agreement that could amount to a conspiracy.

[13] On the counterclaim, the respondents argued that it was uncontestable that the statements were defamatory, that they had been published by the appellant and that they would tend to lower the reputation of the respondents in the eyes of a reasonable person. They argued that the defence of justification was not available because the appellant failed to provide any evidence that the defamatory statements were true. They submitted that the defence of fair comment was not available as the statements were clearly published with malice. Frederiksen argued that the appellant had appropriated her identity by registering multiple names for website and social media groups using Frederiksen’s name and further that the appellant had threatened to sue others who proposed to engage Frederiksen to speak.

[14] Frederiksen argued that a permanent injunction was necessary to end the appellant’s long running campaign to ruin her reputation, which did not lessen even after the counterclaim was brought and continued after a consent interim order restraining her from defaming Frederiksen was made. The appellant stated she had nothing left to lose, no assets to lose in a libel case, and that she would continue to speak.

The motion judge’s decision

[15] The motion judge rejected the arguments advanced by the appellant and found for the respondents on the counterclaim. She ruled that summary judgment in favour of the respondents was appropriate.

(1) The claims against Farber

[16] She concluded that Farber’s opinion expressed in the television broadcast was not untrue and was incapable of supporting the torts alleged and that there was no evidence of damage. She held there was no evidence of an agreement that could amount to a conspiracy. The opinions expressed about events in the past in the broadcast could not be construed as appropriation of the appellant’s name or image for commercial purposes. Similarly, the claim of unlawful interference with economic interests was based on allegations of false public statements about Frederiksen’s life, said to amount to appropriations of the appellant’s life. There was no duty of care owed to support a claim in negligence. She concluded that the claim against Farber was frivolous and vexatious.

(2) The claims against Frederiksen

[17] The motion judge held that Frederiksen was entitled to speak about her own life experiences and that this was not an actionable wrong. The evidence was that Frederiksen had only ever spoken truthfully about her own life. This did not amount to “unauthorized use of a name or likeness of a person as a symbol of [her] identity”. Even taking the appellant’s evidence at its highest, there was no evidence of false statements by Frederiksen which underlay the claims for injurious falsehood and civil conspiracy, no evidence of an agreement to support the allegation of conspiracy, and no evidence of an unlawful act directed at a third party to support the claim on interference with economic relations. There was no basis to find a duty in negligence, no standard of care or breach identified, and no evidence of any loss.

[18] The motion judge held that the defamatory statements the appellant made about the respondent Frederiksen were not true, and that they were made maliciously and with abusive intent. The motion judge awarded global damages of $100,000 together with $50,000 for aggravated damages and $50,000 for punitive damages to Frederiksen for defamation, breach of confidence, appropriation of Frederiksen’s name on websites and social media sites and interference with her economic relations. She agreed that a permanent injunction was necessary to restrain the appellant’s behaviour and invited counsel to make submissions as to the form of the order.

The delay following the summary judgment

[19] The appellant submits that she manifested an intention to appeal by serving and filing a notice of appeal from the summary judgment on March 3, 2021 and March 5, 2021 respectively. She says that she mistakenly thought she had 60 days after the receipt of the transcripts of the summary judgment hearing to perfect the appeal. There was no transcript of the hearing; it proceeded on a written record. Pursuant to Rule 61.09(1)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, she was required to perfect her appeal within 30 days from March 5, 2021. On April 6, 2021, the Registrar of this court gave notice to the appellant of an intention to dismiss the appeal for delay, pursuant to Rule 61.13(2.1). The notice gave her an extension to April 28, 2021, to perfect the appeal and explained how to obtain a further extension if requested before that date. She was warned that the Registrar intended to dismiss the appeal if it was not perfected or the time was not otherwise extended.

[20] On April 8, 2021, counsel emailed the appellant to advise her of the rules to perfect her appeal, and warning that unless perfected there would be a motion to dismiss the appeal for delay. On cross examination on the appellant’s affidavit on this motion, the respondents learned that the appellant had retained Mr. Kary as her fourth counsel in mid-April, close to the date of the email, although that was not communicated to the respondents until May 12, 2021.

[21] Counsel for Frederiksen wrote to the court on April 16, 2021, to ask for an opportunity to make submissions if the appellant asked for a further extension to perfect the appeal.

[22] Nothing happened over the following weeks and on May 3, 2021, counsel for Frederiksen wrote to the court to ask if the matter had been dismissed for delay, copying the appellant on that correspondence.

[23] On May 12, 2021, Mr. Kary wrote to advise that he was now acting for the appellant and asked for more time to perfect the appeal. Frederiksen’s counsel advised that the respondents would not consent.

[24] Mr. Kary did not respond. On May 26, 2021, counsel for Frederiksen wrote to the court inquiring about the dismissal for delay, and followed up with another letter on July 1, 2021, with copies to both Mr. Kary and the appellant. There was no response indicating that they intended to pursue the appeal.

[25] On July 21, 2021, the Registrar dismissed the appeal for delay because it had not been perfected. On August 18, 2021, the appellant’s counsel advised that he was bringing a motion to set aside the administrative dismissal. He still had not filed a notice confirming that he was now counsel of record. Counsel on both sides initially agreed to a motion date of October 1, 2021. Frederiksen’s counsel suggested a timetable for various steps to ensure that date could be met. The appellant’s counsel did not provide his motion materials until October 8, 2021.

[26] Cross examinations were initially set for October 20, 2021, however the appellant’s counsel indicated that he intended to file a further affidavit in reply which had not been contemplated by the initial timetable. Counsel for the Frederiksen asked that the affidavit be delivered by October 25, 2021, so that cross examinations could deal with all of the appellant’s evidence. Cross examinations were conducted on October 27, 2021.

[27] I admit the fresh evidence proffered by the respondents consisting of correspondence between counsel to illustrate how events unfolded after cross examinations. On November 4, 2021, counsel for Frederiksen wrote to appellant’s counsel to ask if he had arranged for a date for argument of the motion. She provided him with transcripts of the cross examination the next day and extended the timetable to give the appellant’s counsel until November 12, 2021, to deliver his factum, still hoping that the motion could be heard before the end of the year.

[28] On November 12, 2021, counsel for the appellant advised his factum was not yet complete and that he had not yet secured the motion date. He delivered his factum on November 15, 2021. On December 10, 2021, he advised that he would not be able to bring the motion before the end of the year.

[29] Counsel for the appellant advised that he had obtained a date for the motion of January 11, 2022, but that this was intended to be a placeholder date only and that it was not his “intent to file the material with the Court any time in the immediate future. I am neither confirming or agreeing to the date at this time”. He was hopeful that if another matter requiring Frederiksen’s counsel’s attention settled, the motion could still be argued in December 2021, but later indicated that personal issues on his part and his client’s absence meant that the motion could not proceed in December.

[30] On December 7, 2021, the respondents offered to amend the terms of the injunction to allow the appellant to communicate with her medical and mental health advisors, to respond to concerns about the breadth of the injunction. They asked the appellant’s counsel to provide a draft document to reflect their acceptance of his proposal to effect this by way of agreement, rather than an amendment to the judgment. No such document was ever forthcoming.

[31] The appellant ultimately brought a motion returnable January 11, 2022, some 13 months after the judgment.

The Grounds of Appeal

[32] The appellant challenges the motion judge’s decision on many grounds. Her initial Notice of Appeal lists 38 paragraphs of grounds of appeal, many of them compounding multiple criticisms of the judgment and the motion judge. Her supplementary Notice of Appeal adds 15 more paragraphs alleging error.

[33] While the appellant’s counsel indicates that he takes no issue with any of the factual findings made by the motion judge, he submits that she did not follow the procedure mandated by Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 for fact finding on a summary judgment motion and that the judgment must be set aside on that ground. He submits that the motion judge necessarily evaluated credibility and weighed competing evidence.

[34] He submits that the injunction granted restraining the appellant from speaking about Frederiksen was too broad and that such relief should only be granted in the clearest of cases. He submits that the motion judge’s reasons finding the appellant liable on the counterclaim were insufficient and failed to address the allegedly defamatory statements individually. He submits that the trial judge erred in finding the appellant’s statements about Frederiksen were made maliciously.

[35] He submits that after judgment was given, but before the terms of the injunction were settled, the motion judge received unsolicited correspondence from counsel for Frederiksen enclosing a letter the appellant had sent to the Canadian Race Relations Foundation, enclosing her Notice of Appeal and complaining about the conduct of the motion judge. This, he says, could have affected the motion judge’s decision about the scope of the injunction. The appellant is critical of the motion judge’s liberal importation of the respondents’ factums, cutting and pasting substantial parts of them into her reasons. She criticizes the motion judge for casual comments about previous law firm relationship with one of the respondent’s counsel dating back to the year 2000 and other casual comments about her own retirement, golf, spouse and dinner plans. She alleges that the motion judge was biased, favoured the respondents, and pressured her counsel.

[36] While the appellant did not plead defamation, and such a claim would have been barred by the very short limitation period in the Libel and Slander Act, R.S.O. 1990, c. L.12, the appellant submits that her claim was in essence a claim in defamation and that the motion judge should have analysed it on that basis.

[37] The appellant submits that the motion judge’s reasons for dismissing the claim of wrongful appropriation of personality were inadequate and wrong.

[38] The appellant has not particularized her grounds of appeal by filing a draft factum on this motion and has not suggested a date by which her appeal would be perfected.

Have the respondents been prejudiced by the appellant’s delay?

[39] The appellant submits that the respondents have suffered no prejudice from delay on her part, which should be forgiven because she was self represented for the initial period following the judgment, and because the matter was complex. Since the injunction would remain in place pending the hearing of the appeal, the respondents would be protected from further defamatory statements.

[40] In sum, the appellant submits that the justice of this case requires that the Registrar’s order dismissing the appeal be set aside and that she be allowed to perfect her appeal.

Analysis

[41] The relevant factors on this motion to extend the time to perfect an appeal and to set aside a Registrar’s dismissal are not in dispute: Issasi v. Rosenzweig, 2011 ONCA 112, 277 O.A.C. 391, at para. 4. They are:

1. whether the appellant formed an intention to appeal within the relevant period;
2. the length of the delay and explanation for the delay;
3. any prejudice to the respondent;
4. the merits of the appeal; and
5. whether the “justice of the case” requires it.

[42] While the appellant manifested an intention to appeal within 30 days of the judgment in issue, I am not persuaded that she has pursued the appeal with reasonable diligence. The initial notice from the Registrar should have prompted her to act with a sense of urgency, knowing that there was a risk her appeal would be dismissed for delay. The summary judgment motion was based on a written record. Assembly of an appeal book incorporating those documents would have been a mechanical exercise which could have been completed without delay but still has not been done. If the appellant proposed to place fresh evidence before the panel hearing the appeal about the conduct of the hearing, that should have been articulated in an affidavit accompanying a motion to admit fresh evidence. The appellant had no apparent difficulty articulating her complaints about the trial process in her first Notice of Appeal. She has not done so. Cross examination on any such affidavit would almost certainly be required and would lead to further delay even if she delivered an affidavit promptly.

[43] The issues on the appeal are largely defined by the reasons for judgment, and I am not satisfied that there is a reasonable excuse for failure to deliver a factum. No draft factum has been delivered to identify the issues that would be argued on appeal.

[44] We are now 13 months after the judgment and these steps have not been taken. Her approach to the appeal has been desultory. While the length of the delay is not amongst the worst seen in this court, it is important to recall the context of a summary judgment motion, which by its nature is intended to avoid a trial when one is not required and promote proportionate, economical and speedy access to justice.

The merits of the appeal

[45] In oral argument, the appellant’s counsel agreed that the linchpin upon which all of the appellant’s asserted causes of action rested was her allegation that the respondents made false statements. When asked to point to any evidence of such false statements, counsel was unable to do so. This was a sufficient basis to dismiss her claims. The motion judge’s observations that the appellant’s claims were based on speculation were well founded. I agree with her observation that the claim advanced against Farber was frivolous and vexatious.

[46] Here, the motion judge was not weighing the credibility of competing versions of events. Even taking the appellant’s case at its highest, there was a critical gap in her evidence. Under these circumstances, the motion judge did not err in concluding that this was an appropriate case for summary judgment.

[47] The appellant argues that although not pleaded or argued, the motion judge should have treated this as an action for defamation. The motion judge would have erred had she done so. It would be even more inappropriate to permit these arguments to be advanced for the first time on appeal. Such a claim would likely be barred by the three-month limitation period under the Libel and Slander Act. Farber made his remarks in the broadcast on September 19, 2017. The amended statement of claim adding him as a defendant was issued on April 15, 2019. Farber’s remarks were not on their face capable of a defamatory meaning. This is a question of law: Lysko v. Braley (2006), 79 O.R. (3d) 721 (CA), at para. 116. Similarly, a claim in defamation against Frederiksen could not survive the absence of any evidence of defamatory statements.

[48] The tort of appropriation of personality was recently discussed in Wiseau Studio, LLC et al. v. Harper et al., 2020 ONSC 2504, an authority relied upon by both the appellant and the respondent Frederiksen. In general, the tort is established when a person’s personality has been appropriated, “amounting to an invasion of his right to exploit his personality by the use of his image, voice or otherwise with damage to the plaintiff”: Wiseau, at para. 212. Frederiksen’s truthful statements about her own life experiences and her own choices about sexual and religious practices cannot amount to an invasion of the appellant’s right to exploit her own personality. There is no evidence that Frederiksen used the appellant’s name or likeness by way of commercial exploitation.

[49] The claim for injurious falsehood fails in the absence of any evidence of false statements by either respondent and in the absence of evidence of malice on their part.

[50] The claim for civil conspiracy fails in the absence of any evidence of an agreement. While the appellant argues on appeal that the unlawful means used to advance the conspiracy was defamation, this fails in the absence of evidence of defamatory statements.

[51] The tort of unlawful interference with economic relations is established where a plaintiff suffers economic loss resulting from a defendant’s unlawful act against a third party, intended to target the plaintiff: A.I. Enterprises Ltd. v. Bram Enterprises Ltd., 2014 SCC 12, [2014] 1 S.C.R. 177, at paras. 23, 43, 45. Here, there was no unlawful act nor a third party identified.

[52] There is no basis to posit a novel duty of care that would support a claim in negligence. The appellant did not articulate in her pleadings or argument any standard of care, any breach of that standard or damages due to negligence, all of which are essential elements of a claim in negligence.

[53] Nor do the appellant’s expressed concerns about the conduct of the trial judge rise to the level required to displace the presumption of judicial integrity and impartiality: Cojocaru v. British Columbia Women’s Hospital and Health Centre, 2013 SCC 30, [2013] 2 S.C.R. 357, at paras. 15-20. Frederiksen’s counsel did not breach Rule 1.09 by sending unsolicited communications to the motion judge between the date of the judgment and the date when the terms of the injunction were settled. The motion judge invited counsel to communicate with her about the terms of the injunction. The appellant’s actions in continuing to communicate with third parties about the respondents was relevant to the scope of the injunction.

The counterclaim

[54] The evidence that the appellant made defamatory statements about Frederiksen was overwhelming. The motion judge described the breadth of circulation, the degree of repetition and the seriousness of the harm inflicted at pp. 131-133 of her reasons for decision:

[131] Ms. Moore submits that the defamatory statements meet all three of these elements. First, the defamatory statements were published by Ms. Hategan. The majority of the defamatory statements were posted online on a variety of social media platforms and websites accessible worldwide to thousands of viewers. In certain instances, the defamatory statements were emailed directly to third parties and, with respect to the “case summary”, was emailed to over 500 people. Secondly, Ms. Moore is the clear target of the defamatory statements. The Court of Appeal for Ontario has confirmed that defamation can be made out through statements that do not refer specifically to the plaintiff, in this case Ms. Moore, but follow previous statements in which Ms. Moore is specifically identified. In most cases the defamatory statements expressly identify Ms. Moore by name or photograph. In certain defamatory statements, she is not specifically named, but these statements follow previous statements in which she is specifically identified. A reasonable reader would understand that the publication is about Ms. Moore.

[132] Finally, Ms. Moore claims that there is no question that the defamatory statements would tend to lower Ms. Moore’s reputation in the eyes of a reasonable person. She submits that the defamatory statements are of the most serious nature, containing accusations of manifestly improper and immoral conduct, and contain all the essential hallmarks of expression that is not worthy of protection. In their plain and ordinary meaning, the defamatory statements would be understood to mean that Ms. Moore is a stalker; is a liar; is dangerous; is not to be trusted; has engaged in unethical and illegal behaviour; is homophobic; is lying about being bisexual; is a bigot; is delusional; suffers from mental illness; has engaged in fraud; has capitalized on white supremacy for personal gain; has colluded with individuals and organizations to attain financial gains; has appropriated Ms. Hategan’s experiences for her own personal and financial gain; trades sexual favours for success; and has committed perjury by lying in an affidavit filed with the court.

[133] I agree that the tort of defamation has been made out. The words complained of were published to at least one other person; the words complained of referred to Ms. Moore either directly or indirectly and the impugned words are defamatory, in the sense that they tend to lower Ms. [Moore]’s reputation in the eyes of a reasonable person. [Footnotes omitted.]

[55] I do not accept the argument that in this context, the motion judge was obliged to examine each statement made by the appellant in isolation.

[56] The onus was on the appellant to establish any defence to the defamation. Given the gaps in the appellant’s evidence, I am not persuaded that the motion judge erred in rejecting the defences of justification and fair comment. The thrust of the appellant’s campaign was that Frederiksen was dishonestly stealing her identity. That was not established. Here, the mode, style, tenor, tone, language, broad dissemination over multiple platforms as well as the content of the communications scream of malice. The evidence proffered by the appellant did nothing to dispel that impression: see Zhong v. Wu, 2019 ONSC 7088, at para. 24.

[57] The appellant also submits that the motion judge erred in granting an injunction restricting her ability to speak about Frederiksen. The terms of the injunction are as follows:

4. THIS COURT ORDERS that a permanent injunction be granted as against Hategan restraining Hategan from making, distributing, disseminating or in any way publishing any statement orally or in writing (including electronic) on any online platform or through any medium or to any third party whatsoever that: (a) refers to Frederiksen by name; or (b) refers to Frederiksen with sufficient detail or information to make it possible to reasonably identify Frederiksen even without referring to Frederiksen’s name;

5. THIS COURT ORDERS that Hategan remove from any online platform any statement that she has distributed, disseminated or in any way published about Frederiksen, including but not limited to all statements listed in the Amended Claim, and that all such statements be removed within seven days of this Order;

6. THIS COURT ORDERS that within seven days of this Order, Hategan contact all relevant entities and take all necessary steps to release and never again use all domain names listed at paragraph 44 of the Amended Claim and any other domain names which Hategan may have created that refer to Frederiksen or use Frederiksen’s name;

7. THIS COURT ORDERS that Hategan will refrain from ever purchasing, holding, using or controlling any internet domains, tags, handles, websites, profiles or other online identifiers containing Frederiksen’s name;

[58] Given the appellant’s history of disregarding the interim order and the intentions she expressed, there was good reason to believe that absent an injunction she would continue her abusive campaign. Further, there was good reason to believe that any judgment for damages was unlikely to be recoverable. Given the breadth and persistence of the defamatory conduct, I am not persuaded that the injunction was overly broad: see Rainy River (Town) v. Olsen, 2017 ONCA 605, 6 C.P.C. (8th) 1, at para. 5. The appellant is not restrained from speaking about the many matters that are important to her, provided she does not refer to Frederiksen. This is a modest limitation on her freedom of speech, in the circumstances.

[59] In her factum filed on this motion, the appellant does not challenge the motion judge’s conclusions that the appellant had appropriated Frederiksen’s identity by securing domain and web site names incorporating the latter’s name, nor that the appellant had publicized a confidential communication made to her by Frederiksen, except to say that the motion judge should not have made a global award of damages for all of the wrongs committed by the appellant. The overall award was reasonable. There is little likelihood it would be altered on appeal.

[60] Overall, I conclude that there is little or no merit to the appeal.

Prejudice

[61] It would be prejudicial to the respondents to incur further costs to resist an appeal with so little merit, particularly given the appellant’s assertions that she is immune from any judgment awarded against her: see Bobel v. Humecka, 2021 ONCA 757.

The overall justice of the case

[62] I recognize the importance of the right of appeal. However, stepping back and looking at this matter as a whole, I am not persuaded that the Registrar’s order dismissing the action should be set aside nor that further time should be allowed to perfect the appeal. Considering the appellant’s failure to pursue the appeal with reasonable timeliness, the little merit to the appeal, the prejudice to the respondents, coupled with the evident malice with which the appellant has acted, to the detriment of the respondents, the motion is dismissed.

[63] The respondent Frederiksen does not seek costs of this motion if it is dismissed. The respondent Farber sought costs fixed at $5,000.00. There is no reasons why costs should not follow the result of this motion, if demanded, and costs of the motion are awarded to Farber fixed at $5,000.00 inclusive of taxes and disbursements.

“G. Pardu J.A.”

[1] Elizabeth Moore Frederiksen’s legal name is Elizabeth Frederiksen, but she continues to use her original name, Elizabeth Moore, for her work.