COURT FILE NO.: 584/06

DATE: 20080529

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

PITT, MOLLOY AND MURRAY J.J.

B E T W E E N:

JENNIFER BEIDAS, HEATHER CLAIRE DAVIES, JENNIFER CLAIRE PALLISTER, MYSTI RAE MEADOWS and DAWNA TRACEY ARMSTRONG

Jennifer Beidas, In Person

Heather Claire Davies, In Person

Plaintiffs (Respondents)

• and -

GREGORY PICHLER a.k.a. JOELLE LEGASSÉ, LUCY PYBKA-BECKER a.k.a. KRISTA PAPARAZZI, OPEN SYSTEMS GROUP LIMITED and TRANSGRESSION.COM

Gregory M. Sidlofsky, for the Defendants (Appellants) Gregory Pichler and Open Systems Group Limited

Defendants (Appellants)

HEARD at Toronto: February 13, 2008

REASONS FOR JUDGMENT

MURRAY J.:

[1] Initially there were five plaintiffs in this action initiated against Gregory Pichler, Open Systems Group Limited, Lucy Rybka-Becker and www.Transgression.com. The five plaintiffs were: Jennifer Beidas, Heather Claire Davies, Jennifer Claire Pallister, Mysti Rae Meadows and Dawna Tracey Armstrong.

[2] The action was commenced on September 13, 2005 and - in the main - is an action seeking damages for defamation against the defendants. The plaintiffs brought a motion on short notice for injunctive relief concerning the publication and dissemination of certain articles on the Internet.

[3] No plaintiff, other than Heather Claire Davies, filed an affidavit in support of the initial motion for injunctive relief.

[4] On September 15, 2005, Justice Somers granted an interim injunction prohibiting the defendants from publishing a list of articles and audio files.

[5] The order of Justice Somers provided that the defendants could serve responding materials and then move to set aside or otherwise amend the injunctive relief granted by Justice Somers.

[6] In August of 2006, the defendants moved before Justice Himel to set aside the order of Justice Somers dated September 15, 2005 and, at the same time, the plaintiffs sought to broaden the order granted by Justice Somers to prohibit the defendants from publishing any materials which name the plaintiffs. In the proceedings before Justice Himel, the plaintiffs Beidas, Davies and Pallister were represented by counsel, Mr. Howard Crosner. The plaintiff Armstrong consented to an order dismissing her action against the defendants. The plaintiff Mysti Rae Meadows did not file any material and did not appear before Justice Himel.

[7] By order dated October 3, 2007, Justice Swinton ruled that Mysti Rae Meadows had no standing to be heard on this appeal.

[8] The plaintiff Jennifer Pallister died in August 2007. This appeal was adjourned on October 3, 2007 to permit adequate notice to the executor of her estate, if there was one. At the outset of this appeal on February 13, 2008, the plaintiffs Davies and Pallister sought an adjournment in order to arrange for the appointment of an executor, which request was refused. Accordingly, the plaintiffs, for purposes of this appeal, are Jennifer Beidas and Heather Davies.

[9] As is clear from paragraph 7 of Justice Himel’s endorsement dated August 22, 2006, the plaintiffs Beidas, Davies and Pallister did not oppose setting aside the order of Justice Somers provided that the defendants “are restrained pending trial from publishing any material which may identify these plaintiffs and that all references to these plaintiffs be deleted (from the Internet).”

[10] As is noted in paragraph 5 of Madam Justice Himel’s decision, the plaintiffs Pallister and Beidas did not file any affidavit material in support of the injunction either before Justice Somers or before Himel J. and, before the return of the defendants’ motion before Himel J., both Pallister and Beidas refused to attend to be examined as witnesses although they were personally served with notices of appointment by the defendant's counsel, Mr. Gregory M. Sidlofsky.

[11] Madam Justice Himel made, inter alia, the following orders:

1. The order of Somers J. dated September 15, 2005 will be replaced by an order until trial of this action prohibiting the defendants from publishing any materials which may tend to identify the plaintiffs Beidas, Davies and Pallister.

2. The defendants shall delete all references to Beidas, Davies or Pallister from any publications to which the defendants have, or can obtain access.

[12] In a separate endorsement dated October 11, 2006 Justice Himel awarded costs to the plaintiffs in the amount of $35,000 for fees excluding GST and disbursements of $2277.65.

[13] These orders, including the cost order, are the subject of this appeal for which leave to appeal was granted on the 18th of December 2006 by Justice Matlow.

Analysis

Interlocutory Injunctive Relief

[14] First, it is appropriate to consider the general principles applicable in a case such as the one before this Court. In Rapp et al. v. McClelland & Stewart Ltd. et al. (1982), 1981 1696 (ON SC), 34 O.R. (2d) 452, Griffiths J. described generally the requirements for an injunction in a case of defamation at p. 455.:

The granting of injunctions to restrain publication of alleged libels is an exceptional remedy granted only in the rarest and clearest of cases. That reluctance to restrict in advance publication of words spoken or written is founded, of course, on the necessity under our democratic system to protect free speech and unimpeded expression of opinion. The exceptions to this rule are extremely rare.

For at least one hundred years and certainly since the leading cases of William Coulson & Sons v. James Coulson & Co. (1887), 3 T.L.R. 846, and Collard v. Marshall, [1892] 1 Ch. 571, and perhaps above all, in the leading case of Bonnard v. Perryman, [1891] 2 Ch. 269, it has been universally and consistently held by British and Canadian Courts that such an interim injunction will never be granted where the defendant expresses his intention to justify unless the words in question are so clearly defamatory and so obviously impossible to justify that the verdict of a jury accepting a plea of justification as a defence would of necessity have to be set aside as a perverse finding on appeal.

The guiding principle then is, that the injunction should only issue where the words complained of are so manifestly defamatory that any jury verdict to the contrary would be considered perverse by the Court of Appeal. To put it another way where it is impossible to say that a reasonable jury must inevitably find the words defamatory the injunction should not issue.

In this case, I am not prepared to predict at this stage that a jury will, inevitably, find the words here complained of defamatory of the plaintiff. The English Court of Appeal has recently held in Herbage v. Times Newspapers, May 1981 (not yet reported) that the decision of the House of Lords in American Cyanamid Co. v. Ethicon Ltd., 1975 2598 (FC), [1975] A.C. 396, has not affected the well established principle in cases of libel that an interim injunction should not be granted unless the jury would inevitably come to the conclusion that the words were defamatory.

In my view as well the principle should be preserved in libel cases that except in a case of manifest libel the interim injunction should not issue where the wrong suffered by the plaintiff may be adequately compensated for in damages. There is early authority for this in the decision of Monson v. Tussauds Ltd., [1894] 1 Q.B. 671.

[15] In Rosemond Estates Inc. et al. v. Levy et al.2003 44868 (ON SC), 65 O.R. (3d) 79, [2003] O.J. No. 1748, Spence J. stated: “that the court should be particularly cautious about granting an injunction where the issue concerns defamation is clear from the decision in Rapp v. McClelland & Stewart Ltd. (1981), 1981 1696 (ON SC), 34 O.R. (2d) 452, 128 D.L.R. (3d) 650 (S.C.) per Griffiths J. at p. 455 O.R..

[16] In his treatise Injunctions and Specific Performance (2nd ed. 1992 (loose-leaf)), Robert Sharpe says the following, at paras. 5.40-5.70 (pp. 5.2-5.4):

There is a significant public interest in the free and uncensored circulation of information and the important principle of freedom of the press to be safeguarded.

The well-established rule is that an interlocutory injunction will not be granted where the defendant indicates an intention to justify [i.e. prove the truth of] the statements complained of, unless the plaintiff is able to satisfy the court at the interlocutory stage that the words are both clearly defamatory and impossible to justify.

…it seems clear that the rule is unaffected by the American Cyanamid case and that the balance of convenience is not a factor.

“Clean Hands”

[17] In Sherwood Dash Inc. v. Woodview Products Inc. [2005] O.J. No. 5298, P.M. Perell J. quoted the often-cited maxim that one who seeks equity must have clean hands. He said as follows in paragraphs 51-53:

An injunction is an equitable remedy and it is subject to the principles that govern the grant of equitable decrees and orders. One of those principles is the maxim that "one who comes to equity with clean hands."

As commentators and judges have noted, the metaphor that a claimant for equitable relief must have clean hands must be put into context. Judges of the courts of equity do not deny relief because the claimant is a villain or wrongdoer; rather, the judges deny relief when the claimant's wrongdoing taints the appropriateness of the remedy being sought from the court. In Argyll v. Argyll, [1967] Ch. 302, Ungoed-Thomas, J. described the principle nicely at pp. 331-2, when he said: "A person coming to Equity for relief ... must come with clean hands; but the cleanliness required is to be judged in relation to the relief sought."

In City of Toronto v. Polai, (1969), 1969 339 (ON CA), 8 D.L.R. (3d) 689 (Ont. C.A.), in describing the clean hands principle Schroeder, J.A. stated at pp. 699-70:

The misconduct charged against the plaintiff as ground for invoking the maxim against him must relate directly to the very transaction concerning which the complaint is made, and not merely to the general morals or conduct of the person seeking relief; or as is indicated by the reporter's note in the old case of Jones v. Lenthal (1669), 1 Chan. Cas. 154, 22 E.R. 739: "... that the iniquity must be done to the defendant himself."

[18] In Regina v. Consolidated Fastfrate Transport Inc., 1995 1527 (ON CA), [1995] O.J. No. 1855, 24 O.R. (3d) 564, the Court of Appeal stated as follows at paragraph 133:

A Mareva injunction is a discretionary equitable remedy. It will only be granted to a person "who has clean hands". It is on this basis that the requirement for full and frank disclosure rests. See Chitel v. Rothbart, supra, where the application was refused because the plaintiff failed to make the necessary full and frank disclosure. The granting of an injunction also involves weighing the balance of convenience to the parties: Aetna Financial Services Ltd. v. Feigelman, supra, at p. 176. It will be issued in circumstances where the plaintiff demonstrates that he will suffer irreparable harm if the injunction is not issued. Fairness to both sides is a consideration. By contrast, an execution can be issued as of right once a judgment has been obtained against the defendant. If the plaintiff has a valid judgment, considerations such as fairness and the "clean hands" of the plaintiff are irrelevant.

This Appeal

[19] This appeal is granted for the reasons that follow.

[20] First, there was no affidavit evidence before Justice Himel from either Beidas or Pallister and therefore no evidence of irreparable harm from these two plaintiffs. No injunctive relief should have been granted to Beidas or Pallister for this reason.

[21] Secondly, no undertaking as to damages was given by the plaintiffs and no order of the court exempted them from this requirement. See Rule 40.03.

[22] Thirdly, both Beidas and Pallister refused to be examined prior to the return of the motion for interlocutory relief. In the face of such refusal, no injunctive relief should have been granted to the plaintiffs Beidas or Pallister.

[23] Fourthly, the scope of the injunctive relief granted by Justice Himel was too broad.

[24] Finally, Himel J. made errors in principle with respect to her award of costs.

The Failure of the Plaintiffs Beidas and Pallister to File Affidavit Material in Support of Their Application for Interlocutory Injunctive Relief.

[25] Himel J. made no mention of the defendants’ stated intention to plead justification. As Robert Sharpe says in the passage from Injunctions and Specific Performance quoted above: “The well-established rule is that an interlocutory injunction will not be granted where the defendant indicates an intention to justify [i.e. prove the truth of] the statements complained of, unless the plaintiff is able to satisfy the court at the interlocutory stage that the words are both clearly defamatory and impossible to justify.” Justice Sharpe clearly sets out that the onus is on the plaintiff at the interlocutory stage to satisfy the court that the words are both clearly defamatory and impossible to justify. In my view this underscores what is obvious from the Rules, that interlocutory injunctive relief must be based on evidence sufficient to meet the applicable threshold.

[26] It is unclear whether Himel J. applied the correct “stringent rule” as set out in the decision of Canada Metal Co. Ltd., v. Canadian Broadcasting Corp., (1975), 1975 661 (ON SC), 7 O.R. (2d) 261, 55 D.L.R. (3d) 42. Justice Himel appears instead to have applied the three-part test for interlocutory injunctive relief established by RJR-Macdonald Inc .v Canada (Attorney-General), [1994] 1` S.C.R. 311. Whether Himel J. applied the correct test for injunctive relief in a defamation case is perhaps not of great significance in this appeal. Under either Canada Metal Co. Ltd or RJR-Macdonald Inc., where a plaintiff seeks injunctive relief, it is incumbent on the plaintiff to prove irreparable harm. The plaintiff’s obligation is to convince the court that irreparable harm will be suffered and such proof is a condition precedent for obtaining relief.

[27] Evidence of irreparable harm must be clear and not speculative: see Syntex Inc. v. Novapharm Ltd (1991), 1991 14290 (FCA), 36 C.P.R. (3d) 129 (F.C.A.) at p. 135, leave to appeal to S.C.C. refused 39 C.P.R. (3d) v, 137 N.R. 391n; see also Centre Ice Ltd v. National Hockey League, 1994 19510 (FCA), [1994] F.C.J. No. 68, 53 C.P.R. (3d) 34 (F.C.A.) at p. 54; Willow Corp. v. McDonald's Restaurants of Canada Ltd, [1994] O.J. No. 1169 at para. 7; Risi Stone Ltd. v. Omni Stone Corp., [1989] O.J. No. 103.

[28] Neither Beidas nor Pallister provided any evidence of irreparable harm. Indeed, as is clear from the endorsement of Justice Himel, the plaintiffs Pallister and Beidas (who were represented by counsel at the time) “did not file affidavits and did not attend to be examined as witnesses on this motion, although they were personally served with notices of appointment.”

[29] The appeal succeeds for this reason.

The Plaintiffs Failed to Comply with Rule 40.03

[30] The failure to provide a viable undertaking as to damages is sufficient reason alone to deny the request for an interlocutory injunction. See J.M. Wilson J. at para. 103 in Saan Stores Ltd. v. Effigi Inc., [2006] O.J. No. 4685. See also F. Hoffmann-LaRoche & Co. A.G. and Others v. Secretary of State for Trade and Industry, [1975] A.C. 295 at 361, where Lord Diplock said:

The court has no power to compel an applicant for an interim injunction to furnish an undertaking as to damages. All it can do is to refuse the application if he declines to do so. The undertaking is not given to the defendant but to the court itself. Non-performance of it is contempt of court, not breach of contract, and attracts the remedies available for contempts, but the court exacts the undertaking for the defendant's benefit.

[31] The plaintiffs failed to provide an undertaking as to damages and there was no order of the Court exempting them from this requirement.

[32] The appeal also succeeds for this reason.

The Failure of the Plaintiffs Beidas and Pallister to submit to examination before their Application for Interlocutory Injunctive Relief.

[33] If a plaintiff seeking an interlocutory injunction fails to file affidavit material and refuses to be examined, not only is there a failure to prove irreparable harm but also that person does not have “clean hands” and is for that reason too not entitled to relief.

[34] Interlocutory injunctions are most commonly decided on the basis of affidavits and the transcripts of cross-examinations of the deponents. Although a motions judge may hear viva voce evidence and cross-examination, this will not be the usual case. Affidavit evidence and the transcripts of cross-examination on those affidavits are usually what is before the judge and what informs the judge’s decision on whether an injunction should issue.

[35] In my view, even if Beidas and Pallister had filed affidavit material, a refusal to subject themselves to cross-examination would have been fatal to their claim for interlocutory injunctive relief. A defendant is entitled to cross-examine a party seeking equitable relief.

[36] It may be proper for a court to issue an interim injunction to protect a plaintiff pending the return of the motion for interlocutory injunctive relief to allow further affidavit material to be filed and cross-examinations to take place. However, the defendants have the right to examine any party seeking injunctive relief and have the right to rely on the transcript of such examination in order to argue that the interim injunction should be terminated or modified on an interlocutory basis. The plaintiffs’ refusal to be examined not only deprives the court of a more complete record on which to ascertain the facts but also results in a denial of procedural fairness and natural justice to the defendants. Refusing to submit to examination is no less a denial of natural justice than it would be if a motions judge hearing viva voce evidence denied the defendant the right to cross-examine the plaintiff seeking injunctive relief.

[37] Even though the plaintiffs Beidas or Pallister did not file affidavits in support of their motions for injunctive relief, they were fully protected by the interim injunction granted by Somers J. when they refused to be examined. The law should not reward plaintiffs who will not subject themselves or their version of the facts to examination. They do not come to Court with “clean hands”.

[38] No interlocutory injunctive relief should have been granted by Himel J. on behalf of these two plaintiffs because they refused to be examined by the defendants’ counsel.

[39] The defendants’ appeal also succeeds for this reason.

The Scope of the Injunction Order of Justice Himel

[40] Justice Himel made the following orders:

1. The order of Somers J. dated September 15, 2005 will be replaced by an order until trial of this action prohibiting the defendants from publishing any materials which may tend to identify the plaintiffs Beidas, Davies and Pallister.

2. The defendants shall delete all references to Beidas, Davies or Pallister from any publications to which the defendants have, or can obtain access.

[41] In my respectful opinion, these orders are too broad and unnecessarily impair the freedom of speech and expression of the defendants.

[42] In Canada (Human Rights Commission) v. Canadian Liberty Net, 1998 818 (SCC), [1998] S.C.J. No. 31, [1998] 1 S.C.R. 626 the S.C.C. found it "helpful to look at the approach to injunctions in cases of defamatory speech” to determine how "urgency" should be defined in the context of s. 13(1) of the Human Rights Act. The Supreme Court (at para 49) cited with approval the following excerpt from Injunctions and Specific Performance (2nd ed. 1992 (loose-leaf)), Robert Sharpe at paras. 5.40-5.70 (pp. 5.2-5.4):

There is a significant public interest in the free and uncensored circulation of information and the important principle of freedom of the press to be safeguarded. . . .

The well-established rule is that an interlocutory injunction will not be granted where the defendant indicates an intention to justify [i.e. prove the truth of] the statements complained of, unless the plaintiff is able to satisfy the court at the interlocutory stage that the words are both clearly defamatory and impossible to justify.

. . . it seems clear that the rule is unaffected by the American Cyanamid case and that the balance of convenience is not a factor.

For this case, the importance of the above quotation is the reference to the “significant public interest in the free and uncensored circulation of information and the important principle of freedom of the press to be safeguarded.”

[43] In Canada Canada (Human Rights Commission) v. Canadian Liberty Net, the Court expressed its concerns about limitations on speech if injunctive relief is too easily obtained. At para 49, the Court continued:

One of the leading English authorities has a close affinity to the Human Rights Act in that it was a statutory prohibition on certain expression. Herbage v. Pressdram Ltd., [1984] 1 W.L.R. 1160, involved the application of the Rehabilitation of Offenders Act 1974, which had been enacted by Parliament to prevent indefinite reference to an individual's criminal history, after the individual had served his or her sentence. Based on that specific legislative intention, contended the applicant, an injunction should be issued. Griffiths L.J. (on behalf of himself and Kerr L.J. on a two-judge panel) rejected that approach (at p. 1163):

If the court were to accept this argument, the practical effect would I believe be that in very many cases the plaintiff would obtain an injunction, for on the American Cyanamid principles he would often show a serious issue to be tried, that damages would not be realistic compensation, and that the balance of convenience favoured restraining repetition of the alleged libel until trial of the action. It would thus be a very considerable incursion into the present rule which is based on freedom of speech.

In Rapp v. McClelland & Stewart Ltd. (1981), 1981 1696 (ON SC), 34 O.R. (2d) 452, Griffiths J. attempted to define the precise threshold for the granting of an injunction in the following terms (at pp. 455-56):

The guiding principle then is, that the injunction should only issue where the words complained of are so manifestly defamatory that any jury verdict to the contrary would be considered perverse by the Court of Appeal. To put it another way where it is impossible to say that a reasonable jury must inevitably find the words defamatory the injunction should not issue.

…American Cyanamid . . . has not affected the well established principle in cases of libel that an interim injunction should not be granted unless the jury would inevitably come to the conclusion that the words were defamatory.

This passage has recently been cited with approval in the Quebec Court of Appeal in Champagne v. Collège d'enseignement général et professionnel (CEGEP) de Jonquière, 1997 10001 (QC CA), [1997] R.J.Q. 2395. Rothman J.A., on this point speaking on behalf of Delisle and Robert JJ.A., went on to comment on the constitutional dimension of these common law approaches to the use of the injunctive power (at pp. 2402-3):

With the coming into force of the Canadian Charter and the Quebec Charter, these safeguards protecting freedom of expression and freedom of the press have become even more compelling.

The common law authorities in Canada and the United Kingdom have suggested the guiding principle that interlocutory injunctions should only be granted to restrain in advance written or spoken words in the rarest and clearest of cases - where the words are so manifestly defamatory and impossible to justify that an action in defamation would almost certainly succeed. Given the value we place on freedom of expression, particularly in matters of public interest, that guiding principle has much to recommend it. [Emphasis added.]

These cases indicate quite clearly that the Cyanamid test is not applicable in cases of pure speech and, therefore, the appellants are misguided in presuming that this test does apply. As Griffiths L.J. points out in Herbage v. Pressdram, supra, such a test would seldom, if ever, protect controversial speech.

[44] Stark J. in Canada Metal Co. Ltd., v. Canadian Broadcasting Corp., (1975), 1975 661 (ON SC), 7 O.R. (2d) 261 commented on the importance of free expression of opinion in our democratic society when he said (at pp. 261-62) that the reluctance of the courts to restrict in advance publication of words spoken or written is founded “on the necessity under our democratic system to protect free speech and unimpeded expression of opinion.” He further noted that “the exceptions to this rule are extremely rare.”

[45] The order of Himel J. dated prohibited the defendants “from publishing any materials which may tend to identify the plaintiffs Beidas, Davies and Pallister” and ordered the defendants to “delete all references to Beidas, Davies or Pallister from any publications to which the defendants have, or can obtain access.”

[46] By enjoining the defendants from mentioning the plaintiff Davies or any of the plaintiffs, Justice Himel went further than was necessary to protect the plaintiffs from publication and/or dissemination of defamatory words. The order made was too broad and represents an unwarranted restraint on the defendants’ freedom of expression.

[47] Neither does the fact that the alleged defamatory expression took place on the Internet justify an order in the form decided by Himel J. Certainly defamation on the Internet has presented non-traditional problems. As Blair J.A. said in Barrick Gold Corp. v. Lopehandia, 2004 12938 (ON CA), [2004] O.J. No. 2329, 71 O.R. (3d) 416:

The Internet represents a communications revolution. It makes instantaneous global communication available cheaply to anyone with a computer and an Internet connection. It enables individuals, institutions, and companies to communicate with a potentially vast global audience. It is a medium which does not respect geographical boundaries. Concomitant with the utopian possibility of creating virtual communities, enabling aspects of identity to be explored, and heralding a new and global age of free speech and democracy, the Internet is also potentially a medium of virtually limitless international defamation.

[48] Blair J.A. did find that there is something about defamation on the Internet - "cyber libel"- that distinguishes it, for purposes of damages, from defamation in another medium. He outlined the standard factors to consider in determining damages. Those factors may include “the plaintiff's position and standing, the nature and seriousness of the defamatory statements, the mode and extent of publication, the absence or refusal of any retraction or apology, the whole conduct and motive of the defendant from publication through judgment, and any evidence of aggravating or mitigating circumstances.” According to Justice Blair (at paras 31 - 32):

Thus, of the criteria mentioned above, the mode and extent of publication is particularly relevant in the Internet context, and must be considered carefully. Communication via the Internet is instantaneous, seamless, inter-active, blunt, borderless and far-reaching. It is also impersonal, and the anonymous nature of such communications may itself create a greater risk that the defamatory remarks are believed: see Vaquero Energy Ltd. v. Weir, 2004 ABQB 68, [2004] A.J. No. 84 (Alta. Q.B.) at para. 17.

These characteristics create challenges in the libel context. Traditional approaches attuned to "the real world" may not respond adequately to the realities of the Internet world. How does the law protect reputation without unduly overriding such free wheeling public discourse? Lyrissa Barnett Lidsky discusses this conundrum in her article"Silencing John Doe: Defamation and Discourse in Cyberspace", (2000) 49 Duke L.J. 855 at pp. 862-865:

Internet communications lack this formal distance. Because communication can occur almost instantaneously, participants in online discussions place a premium on speed. Indeed, in many fora, speed takes precedence over all other values, including not just accuracy but even grammar, spelling, and punctuation. Hyperbole and exaggeration are common, and "venting" is at least as common as careful and considered argumentation. The fact that many Internet speakers employ online pseudonyms tends to heighten this sense that "anything goes" and some commentators have likened cyberspace to a frontier society free from the conventions and constraints that limit discourse in the real world. While this view is undoubtedly overstated, certainly the immediacy and informality of Internet communications may be central to its widespread appeal.

Although Internet communications may have the ephemeral qualities of gossip with regard to accuracy, they are communicated through a medium more pervasive than print, and for this reason they have tremendous power to harm reputation. Once a message enters cyberspace, millions of people worldwide can gain access to it. Even if the message is posted in a discussion forum frequented by only a handful of people, any one of them can republish the message by printing it or, as is more likely, by forwarding it instantly to a different discussion forum. And if the message is sufficiently provocative, it may be republished again and again. The extraordinary capacity of the Internet to replicate almost endlessly any defamatory message lends credence to the notion that "the truth rarely catches up with a lie". The problem for libel law, then, is how to protect reputation without squelching the potential of the Internet as a medium of public discourse [emphasis added].

These characteristics differentiate the publication of defamatory material on the Internet from publication in the more traditional forms of media, in my opinion.

[49] While the Court of Appeal held that the Internet may have an impact on damages in a defamation case, there is no suggestion in Barrick that, in cases involving the Internet, courts should be less vigilant in protecting free speech and expression. Quite the contrary, Blair J.A. asked the question: “How does the law protect reputation without unduly overriding such free wheeling public discourse?” Clearly, protection of freedom of discourse on the Internet is of fundamental importance to the Court of Appeal.

[50] I conclude therefore that the fact that the alleged defamation took place on the Internet is not a justification for the breadth of the orders made by Himel J.

[51] One of the problems raised by the plaintiff Davies in the case at bar related to the potential of other Internet servers distributing the alleged defamatory material. The Court of Appeal in Barrick found that an injunction would operate to prevent third party service providers from further dissemination of defamatory material. This issue is what Blair J. A. was adverting to in the Barrick Gold case when he said at para 76:

Here, at least one of the bulletin boards utilized by Mr. Lopehandia for the dissemination of his campaign against Barrick is operated by Yahoo Canada Inc. in Toronto. The posting of messages on that board constitutes at least an act done by the defendant that affects Barrick's reputation, goodwill, and personal property in Ontario, and arguably constitutes an act done by him in Ontario. The courts in Ontario must have jurisdiction to restrain such conduct. Even if an injunction may only be enforced in this province against Mr. Lopehandia if he enters the province personally, there are two reasons why the injunction may nonetheless be effective. The first is that it will operate to prevent Yahoo! from continuing to post the defamatory messages: MacMillan Bloedel Ltd. v. Simpson, 1996 165 (SCC), [1996] 2 S.C.R. 1048, [1996] S.C.J. No. 83; Attorney-General v. Times Newspapers Ltd., [1991] 1 A.C. 191 (H.L.). Secondly, it may be enforceable in British Columbia, where Mr. Lopehandia resides: Morguard Investments Ltd. v. De Savoye, 1990 29 (SCC), [1990] 3 S.C.R. 1077, [1990] S.C.J. No. 135; J.-G. Castel and Janet Walker, Canadian Conflict of Laws, 5th ed. (looseleaf) (Toronto: Butterworths, 2004), at p. 14-31. [page446]

[52] In Barrick a permanent injunction was granted by the Court of Appeal “restraining the defendants from disseminating, posting on the Internet or publishing further defamatory statements concerning Barrick or its officers, directors or employees.”

[53] There is nothing in Barrick or in any other case that this Court has been made aware of to support the granting of an injunction which restricts non-defamatory speech on the Internet.

[54] The Internet should not be less free for expression than other media. The Internet may present unique problems and unique challenges but its use does not and should not invite unwarranted restriction of freedom of expression.

The Consent Injunction Relating to Heather Claire Davies

[55] Heather Claire Davies is the only plaintiff who filed any affidavit material in support of her application for interlocutory relief and she was cross-examined by counsel for the defendants.

[56] Before the Divisional Court, the defendants consented to the continuation of an injunction in favour of the plaintiff Heather Claire Davies. In short, they agreed to an order restraining the defendants from publishing, continuing to publish or otherwise disseminating on the Internet an article or statement called “A Silhouette of Doom” in which Ms. Davies is mentioned. This is the only article or audio file published by the defendants which mentions Heather Claire Davies. The defendants argue that this language is sufficient to protect the interests of the plaintiffs.

[57] Given the Court of Appeal decision in Barrick Gold, had Justice Himel wanted to make a more general order protecting the plaintiff against potential continued Internet defamation, with a proper evidentiary foundation, it would have been open to her to grant interlocutory injunctive relief restraining the defendants from disseminating, posting on the Internet or publishing defamatory statements concerning Heather Claire Davies.

[58] The order made by Himel J. was too broad and is an unwarranted restraint on the defendants’ freedom of expression.

[59] The appeal succeeds for this reason as well.

The Costs Order

[60] Justice Himel received written submissions with respect to costs. The plaintiffs sought costs of approximately $50,000 on a substantial indemnity basis.

[61] The defendants took the position that the cost claimed were excessive, contained time and expenses that were not recoverable on the motion, that the motion was not complex or novel and the argument took approximately half day and, most importantly, that there were no supporting dockets from the law firm which acted for the plaintiffs. The defendants further submitted that the claim for costs included claims on behalf of former solicitors which resulted in duplication of time and effort. Finally, the defendants objected to costs on a substantial indemnity scale.

[62] Justice Himel fixed costs on a partial indemnity basis in the amount of $35,000 for fees excluding GST and disbursements including GST of $2277.65.

[63] The Bill of Costs submitted by plaintiffs’ counsel was not particular enough. The Bill of Costs does not provide a reasonable description of services rendered with charges related thereto. It contained virtually no detail indicating the nature of the services provided, the name of the lawyer providing such services and the time spent. In such circumstances, neither the Court nor the respondent is in any position to assess the reasonableness or unreasonableness of her cost submissions.

[64] The purpose of a Bill of Costs is to clearly itemize the elements of the total bill so as to give the payor an opportunity to exercise his/her judgment as to whether the bill is reasonable or not. In my respectful opinion, for the court to proceed in the absence of sufficient detail from the party claiming costs about the nature of services performed is to deprive both the court and the unsuccessful litigant of the information necessary to make informed submissions on the question of costs. It amounts to making a finding of fact without any evidence in support. It is an error.

[65] In this case there were numerous lawyers involved from other law firms. The matter was not complex and the amount of time spent is unreasonably high. It is reasonable in these circumstances for the unsuccessful litigant to want a detailed breakdown of time spent, the nature of services provided and the name of the lawyer providing such services.

[66] A brief review of some of the discrepancies in the material demonstrates some of the problems facing the defendants in this case. The following are examples:

• The costs claim of the plaintiffs should relate to services performed for the motion before Himel J. heard on August 22, 2006. Himel J. makes no reference to the costs incurred in respect of the motion before Somers J. on September 15, 2005. The limited supporting documents produced (notably the dockets of Ms Rubin) date back to July 2005. Services rendered before September 15, 2005 could not relate to the motion before Himel J.

• The bill of costs claims a total of $7950.00 for work done by Kenneth Smookler. Mr. Smookler was never solicitor of record and never appeared in court.

• Mr. Crosner argued the motion before Justice Himel. He produced no dockets whatsoever and no itemized breakdown of his time. However, 25 hours of his time is claimed at the total amount of $10,000.00 for reviewing the defendants’ motion material. An amount is also claimed for Ms Rubin for reviewing the defendants’ motion material. Further, the bill of costs claims another 8 hours for Mr. Smookler to review the same material, for an additional $1600.00. The total amount claimed in the bill of costs for reviewing the defendants’ motion material is $17,950.00, reflecting a total of 76 hours from five different people.

• Mr. Crosner claimed a full day counsel fee on the motion in the amount of $3500.00 (although we were advised the argument was only half a day) and the bill of costs also claims a counsel fee for Mr. Smookler in the amount of $450.00, although he did not appear on the motion.

• Included is a claim for $4000 to prepare the submissions on costs.

[67] Unsuccessful litigants must, as a matter of fairness, have the right to be provided with the detail of the case on costs which they have to meet. Unilaterally determined cost figures which by their nature do not permit detailed scrutiny by the court or by the unsuccessful party will lead to excessive cost awards, unfairness to the paying party, and lack of accountability in the legal profession and will create further barriers adversely impacting access to justice.

[68] To award costs in the sum awarded and in the absence of a detailed breakdown by the party claiming costs in this case is an error.

[69] The Court of Appeal, in Boucher v. Public Accountants Council for the Province of Ontario, 2004 14579 (ON CA), [2004] O.J. No. 2634, 71 O.R. (3d) 291at para. 26:

The fixing of costs does not begin or end with the calculation of hours times rates. The overall objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances, rather than an amount fixed by the actual costs incurred by the successful litigant.

And further, the Court of Appeal in Boucher stated at paras. 36 - 37 as follows:

The failure to refer, in assessing costs, to the overriding principle of reasonableness, can produce a result that is contrary to the fundamental objective of access to justice. The costs system is incorporated into the Rules of Civil Procedure, which exist to facilitate access to justice. There are obviously cases where the prospect of an award of costs against the losing party will operate as a reality check for the litigant and assist in discouraging frivolous or unnecessary litigation. However, in my view, the chilling effect of a costs award of the magnitude of the award in this case generally exceeds any fair and reasonable expectation of the parties.

In my view, the granting of an award of costs said to be on a partial indemnity basis that is virtually the same as an award on a substantial indemnity basis constitutes an error in principle in the exercise of the motions judge's discretion, particularly when the judge rejected a claim for a substantial indemnity award. This court took a similar view in Stellarbridge at para. 96. [page302]

The amount awarded by Himel J. is excessive and well beyond the reasonable expectations of the unsuccessful party and is in error for this reason as well.

Conclusion

[70] The appeal by the defendants is allowed. The injunction of Justice Himel is vacated.

[71] An order for a continuing interlocutory injunction in favour of the plaintiff Davies shall go in terms consented to by the defendants as follows:

THIS COURT ORDERS that the defendants shall cease and desist and are otherwise enjoined from in any way publishing, continuing to publish or otherwise disseminating the article or statement known as “A Silhouette of Doom”.

Costs

[72] The defendants have two weeks from the date of this judgment to make brief written cost submissions (together with supporting material) as to whether they should be awarded costs and, if so, on what scale and in what quantum. The plaintiffs shall have two weeks from receipt of the defendants’ cost submissions to respond.

MURRAY J.

MOLLOY J.: (concurring with Murray J. in the result, dissenting in part)

Concurrence in Result

[73] I have had the benefit of reading the reasons for decision of my colleagues Pitt J. and Murray J. and I agree with much of what is said by both of them. However, I cannot agree with Pitt J.’s opinion that the scope of the injunction granted by Himel J. is not overly broad. I agree with Murray J. on this point. I would have amended the injunction to restrict the scope of the injunction. My colleague Murray J. cannot support granting an injunction that is narrower in scope because of other issues which in his opinion mean that the injunction cannot stand at all (except with respect to the narrow injunction in favour of Heather Claire Davies to which the defendants have consented). My colleague Pitt J. does not agree that there should be any interference with the order granted by Justice Himel. Since there is no consensus on the panel to support a modification of the injunction, and since I cannot support continuing the injunction in its current form, I must agree with Murray J. in the result, and the injunctions, other than the consent order with respect to Heather Davies, must fall.

Scope of the Injunction Order of Justice Himel

[74] I agree with paragraphs 40 to 54 of the Reasons of Murray J. dealing with the scope of the injunction order granted by Justice Himel. There can be no justification for restraining speech that is not defamatory, particularly at an interlocutory stage of the proceedings. In my opinion, the cases cited by Pitt J. at paragraph 115 of his Reasons do not support granting an injunction in such broad terms in the circumstances of this case.

[75] I recognize the difficulty for enforcement presented by the narrow wording of the initial injunction granted in this case. Even after the order of Somers J. prohibiting the publication of specified articles about the plaintiffs, the offending material continued to appear on the Internet on sites other than the one to which it was first posted by the defendants, although not under the titles specifically enjoined. The first paragraph of Himel J.’s Order restraining the publication of anything identifying the plaintiffs sought to remedy that difficulty. Himel J. also sought to require the defendants to undo the harm that had been done by directing, in the second paragraph of her Order, that they delete all references to the plaintiffs from any publications to which they have, or can obtain, access. I have no difficulty with these being appropriate objectives. However, the Orders simply go further than is necessary to accomplish those objectives. I would have modified the injunction to restrain publication of the material in the specified articles, any other material derived from those articles, any information pertaining to the health status or medical history of the plaintiffs and any other information defamatory of the plaintiffs. A similar modification would have been appropriate with respect to the requirement that the defendants delete any references to the plaintiffs.

Failure of Beidas and Pallister to File Affidavit Material

[76] I agree with Murray J. that proof of irreparable harm is a requirement for obtaining injunctive relief. However, I do not agree that on the particular facts of this case the failure of each plaintiff to file a separate affidavit attesting to irreparable harm was fatal to her entitlement to injunctive relief.

[77] Himel J. was well aware of the failure of these two plaintiffs to file separate material. She nevertheless was satisfied that the material she did have before her satisfied all aspects of the test for an injunction. All three plaintiffs were represented by the same counsel. A substantial affidavit was filed by plaintiffs’ counsel, sworn by Heather Davies, dealing with all of the offensive material, not just that which referred to her. There was also substantial material filed by the defendant Pichler. Both Dr. Davies and Mr. Pichler were cross-examined. The nature of the statements made by Mr. Pichler is vile, clearly defamatory and, in my view, impossible to justify. He admitted deliberately making the statements for the purpose of ruining the plaintiffs. In these circumstances, it would not have been unreasonable to infer irreparable harm would be suffered by the plaintiffs, indeed by anyone against whom these kinds of statements were made. Accordingly, I would not have found this to be an error warranting setting aside the injunctive relief in favour of Beidas and Pallister.

Failure to Comply with Rule 40.3

[78] This argument was not raised on the appeal before us. It would appear that the plaintiffs did not file an undertaking as to damages and there is no reference in the Order of Himel J. to such an undertaking. A refusal by a party to provide the usual undertaking as to damages can be grounds, in and of itself, to deny equitable injunctive relief. However, that does not mean that an injunction can never be granted in the absence of an undertaking; nor does it mean that there must be a specific exemption in the injunction order with respect to the undertaking. In the absence of any request by the defendants for an undertaking as to damages or any argument by them that Himel J. erred in granting an injunction without an undertaking, I do not consider this to be grounds for setting aside the Order.

Failure of the Plaintiffs Beidas and Pallister to Attend for Examination

[79] The failure of the Plaintiffs Beidas and Pallister to submit to examination under oath prior to the argument of the motion before Himel J. is more problematic. The plaintiffs were seeking extraordinary relief from the court in the form of an injunction. It is normally incumbent upon the plaintiffs to place before the court an evidentiary record to support that claim for relief. As I have already stated above, I would be prepared to uphold the granting of injunctive relief in this case even in the absence of an affidavit from the plaintiff Beidas. However, having failed to file an affidavit, at the very least, she was required to attend for examination in compliance with a validly served notice. I agree with Murray J. that in these circumstances to grant an injunction in the face of an outright refusal by the plaintiff to be examined under oath would be unfair to the defendants and constitute a denial of natural justice. However, I do not agree that the conduct of these two plaintiffs is such that the “clean hands” doctrine is invoked.

[80] All three plaintiffs who obtained injunctive relief were at the time represented by the same counsel. They were apparently under the misapprehension that the Notice of Examination served by the defence for the examination under oath of the plaintiffs Beidas and Pallister was not legally valid because the defendant had not delivered an affidavit of documents. They were wrong in that regard; this was not a notice of examination for discovery, but a notice for examination of a witness on a pending motion. Both plaintiffs appearing before us, no longer represented by counsel, argued that the notices were invalid. They are wrong and ignorance of the law is no excuse for failing to abide by the Rules. However, this is not the kind of “wrongdoing” that is contemplated by the “clean hands” doctrine and, in my view, is not an automatic disentitlement to equitable relief.

[81] That said, it would not be fair to the defendant to continue an injunction in favour of Beidas until trial in the face of her refusal to be examined, and I agree with Murray J. that it was a fundamental error for Himel J. to have done so. However, I would have extended one further indulgence to the plaintiff Beidas by upholding the injunctive relief subject to the requirement that she make herself available for examination, with a right to the defendant to move to strike the relief if she failed to attend or to stroke or vary the relief based on any new information obtained from the examination.

The Costs Order

[82] On the issue of the cost award made by Himel J., I agree with the reasons of Justice Murray. In any event, given the success of the appeal, the costs award would fall.

Final Order on This Appeal

[83] In the result, an Order shall issue as follows:

(a) The Order of Somers J. dated September 15, 2005 is set aside.

(b) The Orders of Himel J. August 22, 2006 (granting injunctive relief) and the Order of Himel J. dated October 11, 2006 (awarding costs) are set aside.

(c) An order shall issue stating,

THIS COURT ORDERS that the defendants shall cease and desist and are otherwise enjoined from in any way publishing, continuing to publish or otherwise disseminating the article or statement known as “A Silhouette of Doom”.

(d) The defendants have two weeks from the date of this judgment to make brief written cost submissions (together with supporting material) as to whether they should be awarded costs and, if so, on what scale and in what quantum. The plaintiffs shall have two weeks from receipt of the defendants cost submissions to respond.

MOLLOY J.

PITT J.: (dissenting)

[84] This is an appeal of the order of Madam Justice Himel dated August 22, 2006, granting an interlocutory injunction. The appellants are the defendants in an action commenced by the plaintiffs alleging defamation and other claims.

[85] The plaintiffs (respondents in appeal) sought and obtained an order from Mr. Justice Somers dated September 15, 2005 which prohibited the publication of a list of articles and audio files produced by the defendants (appellants) that the plaintiffs alleged were defamatory. The defendants sought to set aside the order of Somers J., or in the alternative to narrow the scope of the order.

[86] Himel J. set aside the order of Somers J., and replaced it with an altered injunction, prohibiting the appellants from publishing any material which might tend to identify the respondents, and ordering the appellants to delete any references to the respondents in publications to which the appellants “have, or can obtain access”. Himel J. stated that this was a more “streamlined” order, but the appellants view it as an expansion of Somers J.’s order as it extends beyond allegedly defamatory materials.

[87] Leave to appeal the order of Himel J. dated August 22, 2006 was granted by Matlow J. on December 18, 2006. Matlow J. also granted leave to appeal costs.

[88] The appellants now ask:

(a) that the order of Somers J. enjoining the publication of five articles created by the appellants be lifted;

(b) that unspecified relief pertaining to the plaintiffs Dawn Tracey Armstrong (“Armstrong”) and Mysti Rae Meadows (“Meadows”) be lifted; and

(c) that the expanded restrictions in the order of Himel J. be set aside.

[89] The Appellants also appeal the award of costs by Himel J.

Background

[90] The plaintiffs commenced an action against the defendants on September 13, 2005, seeking damages for defamation, as well as for “invasion of privacy, breach of confidence, injurious falsehood and intentional infliction of nervous shock” for a series of articles, audio clips, and web postings on a website operated by the respondent Gregory Pichler (“Pichler”).

[91] Pichler is the owner and directing mind of the defendant Open Systems Group Limited (“OSG”), which in turn owns the website www.transgression.com (“the Website”), which is an online publication dealing with news and information targeted at the transsexual community. The plaintiffs also named Lucy Rybka-Becker (“Becker”), alleging that articles written by that defendant were defamatory.

[92] The plaintiffs, according to the affidavit of the plaintiff Heather Claire Davies (“Davies”), have all been diagnosed with Gender Identity Disorder (“GID”), and all except Mysti Rae Meadows (“Meadows”) have undergone reassignment surgery. The plaintiffs allege that the defendants oppose gender reassignment surgery and are working to prevent government funding for the procedure. The plaintiffs further allege that the defendants published material on the Website which contains many defamatory statements and innuendo. Among other things, the plaintiffs argue that the material suggests that the plaintiffs suffer from psychiatric disorders, obtained their surgeries through unethical behaviour, and are unfit for employment.

[93] The plaintiffs also allege that the defendants published confidential medical and other personal information in an attempt to damage the reputations of the plaintiffs, and that the defendants caused irreparable harm to the plaintiffs’ reputations, their ability to find and maintain employment, and their emotional and mental well-being.

[94] The plaintiffs also sought an interim injunction, at the time they commenced the action, prohibiting the defendants from publishing any of the alleged defamatory statements. Somers J. heard the matter on short notice, and the defendants, who were self-represented at that time, did not have an opportunity to file responding materials. On the basis of affidavit evidence from the plaintiff Davies, Somers J. issued an interim injunction prohibiting the defendants from publishing a list of articles and statements relating to the plaintiffs.

[95] The defendants filed responding materials and moved for the order to be set aside. The plaintiff Davies filed responding affidavit evidence and was cross-examined by defendants’ counsel. The plaintiffs Jennifer Claire Pallister (“Pallister”) and Jennifer Beidas (“Beidas”) did not file affidavits and did not attend to be examined as witnesses on this motion, although they were personally served with notices of appointment.

Somers J.’s Order of September 15, 2005

[96] Somers J. ordered that the “defendants shall cease and desist and are otherwise enjoined from in any way publishing, continuing to publish or otherwise disseminating any one or all of the following articles and statements” set out in an attached schedule to the order.

Himel J.’s Order of August 22, 2006

[97] The defendants sought to set aside the order of Somers J., and the plaintiffs moved to expand the scope of the order. The defendants argued on that motion, and in this appeal, that there is a defence of truth to the allegations of defamation, and that the plaintiffs failed to show irreparable harm. The plaintiffs argued that the defendants had been in continuous breach of the order of Somers J. by having the materials subject to the injunction still available on the internet.

[98] Himel J. considered the three part test for granting injunctive relief and found that the test was met. First, the plaintiffs had a serious issue to be tried. The fact that two of the plaintiffs did not give evidence might be relevant at a later stage, but not for an interlocutory injunction. The test of whether there is a serious issue to be tried is a low one. Himel J. held that “the defendants’ words may be actionable.” Second, the plaintiffs might suffer irreparable harm to their reputations if the relief was not granted. Finally, noting the concerns about the defendants’ livelihood, Himel J. nonetheless found that the balance of convenience favoured the plaintiffs.

[99] Himel J. considered the requirement that injunctive relief for defamation will only be granted in the “rarest and clearest of cases”, but noted that defamation on the internet has been recognized as having the potential for far reaching and damaging consequences. Himel J. stated that her order reflected a more focused application of the injunction ordered by Somers J. She also noted that, while not being bound by it, the order was in keeping with an order made by a justice as a term of the recognizance of bail for a criminal charge against Pichler.

[100] Himel J. replaced the order of Somers J. with an order the defendants were prohibited, until trial of the action, from “publishing any materials, which may tend to identify the plaintiffs”. The court also ordered the defendants to “delete all references to the plaintiffs from any publications to which the defendants have, or can obtain access.”

[101] The court also ordered costs of the motion to be fixed at $35,000 plus GST of $2277.65 payable by the defendants.

Key Issues

[102] The key issues in this appeal are as follows:

(a) Was the interlocutory order appropriate?

(b) Did Himel J. err in making no adverse findings for the failure of Pallister and Beidas to attend examinations?

(c) Was the costs order appropriate?

Analysis

[103] The standard of review on a pure question of law is correctness. Factual findings cannot be reversed in the absence of a “palpable and overriding error.” An error of mixed fact and law is subject to a more stringent standard of review than an error of fact: Housen v. Nikolaisen, 2002 SCC 33, [2002] S.C.J. No. 31.

[104] I can find no error of law in Himel J.’s careful reasoning. I can find no error whatever in the limited fact-finding process in which Himel J. was required to engage, and certainly no palpable or overriding error.

[105] The learned motion Judge correctly located the burden for the relief sought on the party seeking the relief.

Defamation Injunction

[106] The appellants (defendants) submit that they made clear their intent to justify the alleged defamatory statements, and that the statements at issue are not so obviously defamatory and so impossible to justify that a finding of justification would be set aside as perverse on appeal. The appellants have filed evidence supporting the truth of the published materials, and note that the respondents have failed to file evidence that the contents at issue are false.

[107] The appellants submit that the motion Judge’s finding that the words themselves “may be actionable” is not a sufficient basis to grant an injunction, and note that Himel J. did not state what evidence had been relied upon in determining that there was a serious issue to be tried.

[108] The respondents (plaintiffs) argue that the fact that the defamatory material was made available on the internet is enough to meet the test for injunctive relief. They submit that statements published by the appellants were obviously defamatory and impossible to justify; that Pichler has frequently stated that his statements are false, or that he does not know the truth; and that Pichler declared that his intention in publishing was to “destroy” the respondents. They also claim that the appellants frequently published the material prohibited by Somers J. under other titles. They submit that the affidavit of Davies was firsthand knowledge and therefore sufficient to grant the injunction.

[109] The respondents further argue that injunctions are a frequent remedy for breach of confidence, and that prior restraint orders have been ordered in cases involving the internet and breach of confidence. They also submit that the appellants had no authorization to publish personal information about the respondents.

[110] The learned motion Judge carefully analyzed each of the three steps required by R.J.R. Macdonald Inc. v. Canada (Attorney General), 1994 117 (SCC), [1994] 1 S.C.R. 311 for granting interim interlocutory relief, giving special treatment to the unique problem raised by injunctive relief in defamatory cases. She clearly recognized the need for finding that the case was of the rarest and clearest variety, citing both the treatise, The Honourable Mr. Justice Sharpe, Injunctions and Specific Performances 2nd ed. (Toronto: Canada Law Book, 1992) at 5.40, and Canada Metal & Co Ltd. v. Canadian Broadcasting Corp. (1975) 1975 661 (ON SC), 55 D.L.R. (3d) 42 (Ont. Div. Ct.).

[111] In my view, the motion Judge did not err in finding that this is a clear case to grant interim interlocutory relief. While the learned motion Judge only specifically referred to the far-reaching scope of the internet in the paragraph in which she dealt with the rarity and clarity of the case, there is no basis for an inference that she was not sensitive to the reasonable allegation of the respondents that among other things, the appellants were exposing the respondents, an obviously vulnerable group, to public scandal and contempt. It would be fair also to recognize that the appellants, on the record, had no professional medical qualifications, and that on their face the alleged defamatory statements seemed grotesquely gratuitous, touching as they did on the respondents’ personal health. The evidence suggests that this is not a case in which the freedom of expression of the appellants should trump the privacy rights of the respondents.

[112] The appellants relied in their defence on the truth of the defamatory statements. The learned motion Judge observed that the “burden of proving the truth of the statements will rest upon the defendants at trial”. Whether or not she did, it would have been appropriate for the motions Judge to take cognizance of the unlikelihood of the appellants being able to meet his onus on the issue of truth, since the very meaning of truth in the context would probably not be susceptible of precise definition. This is particularly relevant in light of the appellants’ lack of medical expertise. Emanating from a lay person, the allegedly defamatory words were almost bizarre.

Breadth of Order

[113] The appellants argue that Himel J. did not limit the order to materials or references that were alleged to be defamatory, and did not limit the appellants’ obligation to delete references created or maintained by the appellants. They submit that the order as crafted would include a prohibition on information that was both true and not confidential, and that it was beyond the jurisdiction of the judge to enjoin the publication of any content other than that which was potentially tortious or wrongful.

[114] There is authority for the first and second paragraphs of Himel J.’s order, namely:

“1. THIS COURT ORDERS THAT the Order of Somers J. dated September 15, 2005 will be replaced by an order until trial of this action prohibiting the defendants from publishing any materials, which may tend to identify the plaintiffs.

2. THIS COURT ORDERS THAT the defendants shall delete all references to the plaintiffs from any publications to which the defendants have, or can obtain access.”

[115] There is authority supporting the availability of such terms in an order of this nature. In Newman v. Halstead, 2006 BCSC 65, [2006] B.C.J. No. 59 (S.C.), the Court upheld such an order on the basis that there was a serious possibility that the defendant would continue to publish defamatory statements. See also Campbell v. Cartmell, [1999] O.J. No. 3553 (Sup. Ct.); and L. (M.S.) v. G. (H.R.), [2005] W.D.F.L. 2507. Admittedly, it would be necessary to infer the existence of some control by the defendants over the publication referred to in paragraph 2.

Failure to Attend Examinations

[116] The appellants argue that the failure of Pallister and Beidas to attend examinations permits the court to dismiss their action pursuant to r. 34.15 (1) of the Rules of Civil Procedure, and that the motion Judge erred by failing to make any adverse findings with respect to their failure to attend. The appellants submit that the onus is on the respondents to strike out the notices of examination if they were improper.

[117] The respondents argue that the notices of examination constituted improper discovery and were prohibited under Rule 31.04 (1) of the Rules of Civil Procedure, as the appellants had not served an affidavit of documents nor did the respondents consent, and therefore there was no need to strike out the notices. Further, they argue that even if the notices were proper, the appellants failed to act with diligence in pursuing a remedy at the time of the non-appearances.

[118] The motion Judge was obviously aware of the refusal of Beidas to be examined for discovery, or as a witness, and the impact of her refusal on her claim. The motion Judge specifically noted that the lack of discovery evidence for the plaintiff may be relevant at trial but not in the interlocutory application. That was not, in my view, either an error in law or otherwise. The appellant produced no authority for the proposition that a failure to comply (assuming the failure was unjustified, which the respondent did not acknowledge) with even an important interlocutory step necessarily in all circumstances without more, deprives the party in breach of the step of all its rights to relief in the litigation. There are other sanctions for such breach of the Rules. I am not persuaded that Beidas’ failure to be examined was fatal to the plaintiffs’ interlocutory claim for relief. The motions Judge had the defamatory material before her very eyes, and the plaintiff did not deny having published the material.

Since much has been said about the impact of the failure to attend for examinations on the issue of irreparable harm, it is useful to remember that:

“The object of the interlocutory injunction is to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty [as to the result on the merits of the underlying action] were resolved in his favour at the trial.”

American Cyanamid Co. v. Ethicon Ltd., 1975 2598 (FC), [1975] A.C. 396 at 406 (H.L.).

“I have always understood the rule to be that the question is not whether the injunction will harm the defendant, but whether it is probable that unless the defendant is restrained, wrongful acts will be done which will do the plaintiff irreparable injury.”

Rose C.J.H.C. in Law Society of Upper Canada v. MacNaughton, [1942] O.W.N. 551 at 551 (C.A.), cited with approval in Aetna Financial Services Ltd. v. Feigelman, 1985 55 (SCC), [1985] 1 S.C.R. 2 at 10.

It is useful to note the comment of Sharpe J. as he then was, in his work on Injunctions and Specific Performance, second edition Canada law book at 2.600, that terms like “irreparable harm” … do not have a precise meaning. They are more properly seen as guides which take colour and definition in the circumstances of each case.

[119] The appeal ought to be dismissed.

Other Matters

[120] J.C. Pallister’s claim in defamation ended with her death. Meadows and Armstrong did not participate in the motion, and are therefore not entitled to injunctive relief or costs.

The Cost Appeal

[121] I am also of the view that the cost appeal should be dismissed.

[122] The appellants argue that there was insufficient evidence filed by the respondents to support the costs award. They note that the respondents did not submit any evidence or dockets concerning $39,000 of the more than $49,000 claim in costs, and that the respondents claimed costs related to the motion before Somers J. in their costs submissions. They also note that the respondent’s bill of costs states that a former solicitors’ time is included at partial indemnity rates, when it is in fact included at substantial indemnity rates.

[123] It is clear that the motion Judge exercised her discretion judicially with due regard to the provisions of Rule 57, which she included in her Reasons, and to the case law.

[124] In the first place, I do not agree that the award was inordinately high, when one takes into consideration the factors set out in Rule 57.01, in particular the complexity of the proceedings, the importance of the issues for the plaintiffs, indeed the curious nature of the issues, and the time involved. Notably, cross-examinations on affidavits continued for more than two days and the hearing was at least half a day. The plaintiffs fought vigorously for their most valuable asset, their self-respect.

[125] The main complaint of the appellant was the lack of evidence in support of the quantum. I agree that the bill of costs was not a model of clarity, and indeed contained some questionable calculations. However, nowhere in the motion Judge’s reasons did she indicate that she relied on the defendants calculations in fixing costs. The learned motion Judge reduced the bill submitted by the plaintiff by almost 25% and refused to grant costs on a substantial indemnity scale.

[126] It is clear that the motion Judge exercised her discretion in accordance with high and consistent authority.

[127] The authority provided by the plaintiff which best addresses this issue is Chittenden Trust Co. v. Weston, [1993] O.J. No. 7 (Gen. Div.), where at para. 6, Blair J. (as he then was) said:

“A judge, in fixing costs is not assessing costs in the way in which a Master or Assessment Officer does when costs are referred to be assessed, but instead is making a “determination of what the services devoted to the motion or other proceeding are worth according to the submissions of counsel, his own experience and (in party and party situations) with some regard to what could be taxed on the party and party scale”: see Apotex Inc. v. Egis Pharmaceuticals and Novopharm Ltd., (1991) 4 O.R.3(d) 321, at p. 326, per Henry J.”

[128] Incidentally, the reasonable expectations of the parties may perhaps be gleaned from the draft bill of costs submitted by the appellant in this appeal in which he claimed approximately $75,000.00.

PITT J.

Released: May 29, 2008

COURT FILE NO.: 584/06

DATE: 20080529

ONTARIO

SUPERIOR COURT OF JUSTICE

PITT, MOLLOY and MURRAY JJ

B E T W E E N:

JENNIFER BEIDAS, HEATHER CLAIRE DAVIES, JENNIFER CLAIRE PALLISTER, MYSTI RAE MEADOWS and DAWNA TRACEY ARMSTRONG

Plaintiffs (Respondents)

• and –

GREGORY PICHLER a.k.a. JOELLE LEGASSÉ, LUCY RYBKA-BECKER a.k.a KRISTA PAPARAZZI, OPEN SYSTEMS GROUP LIMITED and WWW. TRANSGRESSION.COM

Defendants (Appellants)

REASONS FOR JUDGMENT

PITT J.

MOLLOY J.

MURRAY J.

Released: May 29, 2008