Court File and Parties

COURT OF APPEAL FOR ONTARIO

DATE: 20220407 DOCKET: M53215 (C69999)

Roberts J.A. (Motion Judge)

BETWEEN

Shania Lavallee and Justine Lavallee Plaintiffs (Respondents/Moving Parties)

and

Solit Isak Defendant (Appellant/Responding Party)

Counsel: Charles R. Daoust, for the moving parties Cedric Nahum, for the responding party

Heard: March 10, 2022 by video conference

Reasons for Decision

Overview

[1] The moving parties, Shania and Justine Lavallee (“the Lavallees”) seek an order that the responding party, Solit Isak, post security for their costs: $30,000 as security for the $20,000 cost award granted to them in their successful defamation action; and $10,000 for their estimated appeal costs. The Lavallees’ argument, in a nutshell, is that they should not be subjected to the costs of an unmeritorious appeal that they will not be able to compel Ms. Isak to pay.

[2] Ms. Isak has filed no evidence in response to this motion. Her counsel submits that she is impecunious and does not dispute that she has insufficient assets to pay the Lavallees’ costs. There is no objection to the amount requested as security for costs or that it covers both the trial and estimated appeal costs. However, she submits her appeal is meritorious and brought in good faith, and no security of costs should therefore be ordered.

[3] In the alternative, if security for costs is not granted, the parties agree that the Lavallees may have an extension of time to file a cross-appeal and to file their factum.

[4] The following reasons explain why I conclude that it is fair and just in all the circumstances that Ms. Isak post security for the Lavallees’ costs of the trial and the appeal.

Background

[5] The Lavallees’ action arises out of Ms. Isak’s online comments and actions in response to a screenshot from a video created by the Lavallees, who are sisters. Shania Lavallee posted a video of her sister and Shania’s partner playfighting for a group of her followers on the media platform, Snapchat. An isolated screenshot of one scene from the video was surreptitiously taken by one of Shania’s followers and then circulated. The screenshot ultimately reached Ms. Isak.

[6] The screenshot shows Justine Lavallee lying facedown on the ground. Shania’s partner has Justine’s arms pinned behind her back and his knee placed on the middle of Justine’s back. According to the unchallenged evidence filed by the Lavallees and other witnesses who had seen the video on Snapchat while it was still available online, the posted video was typical of those that Shania regularly took and posted of her sister and Shania’s partner playfighting. They stated that the screenshot was only a small part of the entire video that showed Justine and Shania’s partner playfighting. No comments or remarks related to George Floyd, police brutality, and/or racism were spoken in the video.

[7] Ms. Isak’s reaction was immediate. She testified that she unsuccessfully tried to obtain a copy of the video and spoke to a few people who had viewed it; one of them erroneously reported that the words “police brutality” were said in the video. Although Ms. Isak did not see (and has never seen) the entire video, she denounced the video, the screenshot and the Lavallees as racist in over 100 social media posts. She stated that they were mocking the tragic death of George Floyd that had occurred only days before the video was posted. She also called them “disgusting”, said they “deserve to rot in hell”, and labelled them “K K & K”. She did not know and had never met the Lavallees before receiving the screenshot, but managed to discover their addresses, phone numbers, and employers. She launched an online campaign encouraging others to denounce the Lavallees and have them dismissed from their employment.

[8] As the motion judge found at para. 6 of his reasons, Ms. Isak’s online campaign was successful: the Lavallees lost their employment; Shania was investigated by the Ontario College of Teachers and the Ottawa Catholic School Board rescinded their offer of employment; their home was vandalized; their neighbour’s car was seriously damaged; and their friends and family, who had nothing to do with Shania’s posting, were subjected to death threats and harassing phone calls and social media messages.

[9] In response to the unexpected viral and intense backlash that the screenshot had caused, Shania posted an apology including that she did not mean any disrespect, but she could see how the video could be taken out of context.

[10] The Lavallees through their counsel attempted to resolve matters with Ms. Isak. In response, Ms. Isak intensified her campaign against them. The Lavallees commenced an action against Ms. Isak, seeking damages and a permanent injunction with respect to her postings. Ms. Isak defended the action, initially including and then abandoning a counterclaim. The Lavallees brought a motion for summary judgment and filed affidavits. Ms. Isak was examined for discovery but did not examine the Lavallees. Subsequently, Ms. Isak filed a very short affidavit in response to the motion for summary judgment that essentially adopted the contents of her statement of defence and examination for discovery.

[11] The motion judge concluded that this was an appropriate case for summary judgment because there were no material facts in dispute and noted Ms. Isak did not challenge the appropriateness of summary judgment. He accepted the Lavallees’ unchallenged evidence concerning the nature and contents of the video. It was not contested that Ms. Isak was the author of her impugned statements, the statements were about the Lavallees, and her statements were published to third parties on social media accounts. He further found that Ms. Isak’s statements denouncing the Lavallees as racist tended to lower the Lavallees’ reputations in the eyes of a reasonable person. Following Grant v. Torstar, 2009 SCC 61, [2009] 3 S.C.R. 640, at paras. 28-29, he determined that the three elements of defamation were established. He therefore concluded that Ms. Isak’s postings were defamatory of the Lavallees.

[12] The motion judge then turned to Ms. Isak’s defences. He rejected Ms. Isak’s defences of justification and fair comment. He noted that Ms. Isak had never seen the video and had only seen the screenshot before sharing it on social media and denouncing the screenshot, video, and the Lavallees as racist. He concluded that the defences were unavailable primarily because Ms. Isak did not establish an adequate factual foundation for her comments that the Lavallees’ actions and their video were racist, noting that she did not see the video. He rejected that Shania’s posted apology represented an admission of guilt.

[13] The motion judge allowed the motion for summary judgment and granted judgment to the Lavallees in the amount of $50,000 to each party, plus costs. He noted that there was a real possibility that the Lavallees would not receive any compensation given that Ms. Isak was unemployed as of her examination for discovery in December 2020 and likely did not have significant financial resources to pay the judgment and costs awarded.

[14] Ms. Isak appealed. The main thrust of her appeal is that the motion judge erred in finding that there was no provable, factual basis supporting her opinion that the Lavallees were racist because, in her view, the screenshot and their video mocked the tragic death of George Floyd.

Analysis

Security for costs

[15] This motion is brought pursuant to rule 61.06(1)(a) and (c) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, which provide as follows:

In an appeal where it appears that,

(a) there is good reason to believe that the appeal is frivolous and vexatious and that the appellant has insufficient assets in Ontario to pay the costs of the appeal; …

or

(c) for other good reason, security for costs should be ordered,

a judge of the appellate court, on motion by the respondent, may make such order for security for costs of the proceeding and of the appeal as is just.

[16] The ordering of security for costs is discretionary and not routine. It involves the consideration of the criteria under rule 61.06(1) and requires the overarching assessment of whether it would be just to order security, having regard to the particular circumstances of the case and the interests of justice: Yaiguaje v. Chevron Corporation, 2017 ONCA 827, 418 D.L.R. (4th) 679, at paras. 18-19, 22. As court further noted in Yaiguaje, at para. 25, as each case must be considered on its own facts, “[i]t is neither helpful nor just to compose a static list of factors to be used in all cases in determining the justness for a security for costs order”.

(i) Rule 61.06(1)(a)

[17] I agree that the provisions of rule 61.06(1)(a) are met. As earlier noted, it is conceded that Ms. Isak has insufficient assets to pay the Lavallees’ costs. Moreover, there is good reason to believe that Ms. Isak’s appeal is frivolous and vexatious.

[18] I am not required to determine that Ms. Isak’s appeal is frivolous and vexatious; I must only be satisfied that there is good reason to believe that it is: Schmidt v. Toronto Dominion Bank (1995), 24 O.R. (3d) 1 (C.A.), at para. 16. Relevant factors to be considered in my analysis include those set out in the following oft-cited passage from Schmidt, at para. 18:

The apparent merits of the appeal, the presence or absence of an oblique motive for the launching of the appeal, and the appellant’s conduct in the prosecution of the appeal will be relevant to a determination of whether there appears to be good reason to believe that the appeal is frivolous and vexatious. No doubt, in specific cases, other factors will also be relevant.

[19] The interpretation of “frivolous and vexatious” is not defined under the Rules of Civil Procedure or the Courts of Justice Act, RSO 1990, c C.43 nor has any rigid categorization arisen in the case law. Judicial treatment of these terms is however consistent. A “frivolous” appeal has been interpreted as meaning one “readily recognizable as devoid of merit, as one having little prospect of success”: Pickard v. London Police Services Board, 2010 ONCA 643, 268 O.A.C. 153, at para. 19. A “vexatious appeal” includes one taken to “annoy or embarrass the opposite party” or conducted in a “less than diligent” or “vexatious” manner: York University v. Markicevic, 2017 ONCA 651, at para. 33; Henderson v. Wright, 2016 ONCA 89, 345 O.A.C. 231, at para. 20; Pickard, at para. 19; Schmidt, at para. 20. This may include “an oblique motive for launching the appeal”, such as “to harm a party or delay the proceedings or a given result”: Heidari v. Naghshbandi, 2020 ONCA 757, 153 O.R. (3d) 756, at para. 10; Schmidt, at para. 20; York University, at paras. 33-34. It also may include a failure to comply with the rules, court orders and costs orders, including filing out of time and only when forced to: Pickard, at para. 25; Schmidt, at para. 20; York University, at para. 36; Henderson, at para. 20.

[20] Ms. Isak says that her appeal is meritorious. She accepts that the motion judge applied the correct tests for the defences of justification and fair comment and acknowledges that those tests required her to demonstrate a factual foundation for her impugned statements. However, she maintains that the motion judge erred by conflating opinion with fact, and that the screenshot provided the factual basis for her opinion that the Lavallees were racist because it was open to her to describe the screenshot in the way that she did. Ms. Isak contends that the screenshot speaks for itself.

[21] The difficulty with Ms. Isak’s position is that her appeal essentially amounts to a challenge of the motion judge’s factual findings that were open to him to make on the record before him, contain no apparent error, and would therefore be owed deference on appellate review. Apposite are this court’s comments in Henderson, at para. 16: “This appeal does not raise any arguable error in law, and challenges findings of fact and credibility for which the trial judge set out detailed, facially sound reasons. This court has held that such appeals appear to have no merit” (citations omitted).

[22] In my view, Ms. Isak has not put forward an arguable basis to interfere with the trial judge’s findings. As the motion judge found, Ms. Isak based her views of the entire video and the Lavallees’ actions on an out of context screenshot and on others’ erroneous hearsay observations. Moreover, her impugned statements were not restricted to the screenshot: they included the video that she had never viewed. She anchored her statements that the Lavallees were racists on a misapprehension of what the video contained, including the erroneous allegation that it contained the words “police brutality”. The motion judge found that Ms. Isak did not and could not provide a factual foundation for her opinion that the Lavallees and their video were racist, because she had not seen the video, could not say what it contained, and the screenshot was taken out of context.

[23] Importantly, as the motion judge found, Ms. Isak did not provide evidence of what the video contained to counter the Lavallees’ and their affiants’ evidence that the motion judge accepted. Her speculative assumption of what the video depicted, based on erroneous hearsay information and an isolated screenshot, was at odds with the evidence that the motion judge accepted to be the correct, factual description of what the video showed, including the screenshot. This was not a difference of opinions, as Ms. Isak argues, but evidence of the factual content of the video from witnesses who saw the video that the motion judge was entitled to accept. In my view, there is no apparent basis to interfere with the motion judge’s factual findings.

[24] Ms. Isak contends that her appeal is not vexatious because she has brought and pursued her appeal in good faith, and not for any oblique purpose or to annoy or harass the Lavallees.

[25] In considering this point, it is important not to conflate an appellant’s subjectively and firmly held belief in the rightness of an appeal with good faith. To be sure, deliberately pursuing an appeal in bad faith, for an oblique purpose, or to annoy, harass or harm are all indicia of a vexatious proceeding. However, so, too, is the failure to follow rules of procedure and court orders and the failure to pursue an appeal responsibly and with diligence: Henderson, at para. 20; York, at para. 36; Schmidt, at para. 20. In those circumstances, it can hardly be said that an appeal is being pursued in good faith. Rather, there is good reason to believe it is vexatious.

[26] In the present case, there is good reason to believe that the appeal is vexatious. Ms. Isak did not pursue her appeal or follow the rules with diligence which resulted in unexplained and unnecessary delay and costs.

[27] The motion judge’s reasons for decision were released on October 7, 2021. Ms. Isak did not serve her notice of appeal until November 10, 2021 and then required the consent of the Lavallees’ counsel to the late filing of the notice on November 15, 2021. She failed to perfect her appeal by the deadline under the Rules. As a result, the Registrar issued a Notice of Intention to dismiss the appeal for delay dated December 20, 2021, which required perfection of the appeal on or before January 11, 2022. Ms. Isak again required the consent of the Lavallees’ counsel to the late filing of her appeal book, compendium, and factum on January 14, 2022.

[28] With respect to the Lavallees’ motion for security for costs, the notice was served on November 24, 2021. However, the motion was not brought because of Ms. Isak’s delay in perfecting her appeal. The original return date for the motion on March 2, 2022 was further adjourned by this court at Ms. Isak’s “last minute request” because she did not realize the motion was set for that day although motion materials had been served on February 16, 2022. The court ordered Ms. Isak to pay costs of $500.

[29] The appeal’s lack of merit combined with Ms. Isak’s less than diligent pursuit of this appeal that resulted in unnecessary delay and costs provide good reason to believe the appeal is frivolous and vexatious: Henderson, at para. 20.

(ii) Rule 61.06(1)(c)

[30] If I am wrong in my analysis and conclusion with respect to rule 61.06(1)(a), I am of the view that the Lavallees are entitled to security for costs under rule 61.06(1)(c) which, as noted above, provides that security may be ordered for “other good reason”.

[31] Jamal J.A. (as he then was), sitting as a motion judge, explored what “other good reason” means in Heidari, at para. 23:

Although the list of reasons justifying security under this residual category is not closed, the “other good reason” must be: (1) consistent with the purpose for ordering security – namely, that the respondent is entitled to a measure of protection for costs; and (2) fairly compelling, because the residual category is only engaged where the respondent cannot meet the requirements of rules 61.06(1)(a) or (b). [Citations omitted.]

[32] As this court observed in Henderson, at para. 28, the “other good reason” criterion “balances the need to ensure an appellant is not denied access to the courts, with the respondent’s right to be protected from the risk the appellant will not satisfy the costs of the appeal.”

[33] In my view, there are compelling reasons here to order security for costs.

[34] For the reasons earlier noted, I am of the view that the appeal is without merit. As Ms. Isak concedes that she does not have sufficient assets to satisfy the Lavallees’ costs, it will prove practically impossible for them to compel payment of their costs. There is no evidence, however, that Ms. Isak does not have any means to pay costs.

[35] In balancing the equities here, I am mindful of this court’s caution in Yaiguaje, at para. 23, that “[c]ourts must be vigilant to ensure an order that is designed to be protective in nature is not used as a litigation tactic to prevent a case from being heard on its merits”. That is not the case here.

[36] There is no indication that an order for security for costs will effectively bring this appeal to an end. While I appreciate that it may prove difficult for Ms. Isak to post the security for costs requested by the Lavallees, she has not filed any evidence that she will be unable to do so. While it is conceded that she has insufficient assets to pay costs, Ms. Isak filed no evidence concerning her present employment or financial status or ability to raise or borrow funds. I also note the evidence from Shania Lavallee’s affidavit on the motion for summary judgment and Ms. Isak’s examination for discovery that Ms. Isak previously had recourse to the “GoFundMe” website to raise donations for her legal costs at trial. Moreover, her counsel did not argue that she would be unable to post security; rather, she would need some time to do so.

[37] The Lavallees’ motion for security for their costs is not a litigation tactic. They have incurred considerable expense to-date. As Shania Lavallee indicated in her uncontroverted affidavit filed on this motion, the Lavallees’ actual trial costs were more than double the costs awarded. Like Ms. Isak, the Lavallees are of modest means and their employment prospects were undone by Ms. Isak’s actions that the motion judge characterized as “inexcusable”. As the motion judge found: “[Ms. Isak] demonstrated complete disregard for the well-being of another human being” and “blindly embarked on a brutal and unempathetic campaign to destroy the lives of two young women”.

[38] Considering the lack of the appeal’s merit and Ms. Isak’s delay in pursuing it, it would be unfair to expect the Lavallees to shoulder the burden of the costs of an unmeritorious appeal.

[39] Even if I were to accept that Ms. Isak is impecunious, given my serious reservations about the merits of her appeal, it would be unfair to allow Ms. Isak to proceed in such circumstances with impunity. Doing so would cause the Lavallees to incur significant further costs themselves, without Ms. Isak having to face the normal consequences of costs if she is unsuccessful: Schmidt, at para. 17.

Conclusion

[40] Stepping back and looking at all of the circumstances, I am persuaded that the justice of the case requires that security for the Lavallees’ estimated costs of the appeal in the amount of $15,000 should be ordered to be paid into court by Ms. Isak. The circumstances of this case warrant security for both the trial and the appeal costs; however, the reduced amount recognizes Ms. Isak’s limited financial circumstances.

[41] In this event, the parties agree that the appeal shall be stayed until the security is paid, and that if the security is not paid by June 8, 2022, the appeal date shall be vacated, and the moving parties may move to dismiss the appeal under rule 61.06(2).

Disposition

[42] For these reasons, order to go as follows:

1. The appeal is stayed until security for costs is posted by Ms. Isak;
2. Ms. Isak shall post security for costs in the amount of $15,000 by June 8, 2022;
3. If Ms. Isak fails to post the ordered security by June 8, 2022, the appeal date of June 27, 2022, shall be vacated and the Lavallees may move to dismiss the appeal under rule 61.06(2).

[43] The Lavallees are entitled to their costs of this motion from Ms. Isak in the amount of $4,400, inclusive of disbursements and applicable taxes, payable forthwith.

“L.B. Roberts J.A”