Court File and Parties

Court File No.: CV-17-586772 Date: 2020-03-04 Ontario Superior Court of Justice

Between: Michael Elaschuk, Plaintiff – and – Jade Thelwell also known as Jade Naraine, Defendant

Counsel: Lorne Honickman & Alexander Alton, for the Plaintiff Self-Represented, in person for the Defendant

Heard: March 25, May 23, August 8, 2019 and February 19, 2020

Reasons for Decision

Nishikawa J.

Overview and Procedural Background

[1] The Plaintiff, Michael Elaschuk, commenced an action under the r. 76 simplified procedure in defamation under the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”) against the Defendant, Jade Thelwell, also known as Jade Naraine, for various statements posted about the Plaintiff on the internet.

[2] On May 25, 2018, I granted the Plaintiff’s motion for an interlocutory injunction and made the following order (the “Order”):

(i) The Defendant shall refrain from making, publishing, or causing to be published any false or defamatory statements relating to the Plaintiff whether oral, written, or distributed via the internet; and

(ii) The Defendant shall use best efforts to remove and to preserve electronic copies of all of the Defendant’s statements regarding the Plaintiff that are posted on the websites listed in Schedule ‘A.’

[3] On November 16, 2018, the Divisional Court dismissed the Defendant’s motion for leave to appeal the Order.

[4] In March 2019, Mr. Elaschuk brought a motion for civil contempt, alleging that Ms. Thelwell breached paragraph (i) of the Order. The motion for contempt was first heard on March 25, 2019. In my endorsement dated March 29, 2019 (the “March 2019 Endorsement”), I ordered that an oral hearing with viva voce evidence be held on the third element of the test for contempt, that is, whether Ms. Thelwell intentionally published further false or defamatory statements on the internet in breach of the Order.

[5] The trial of an issue proceeded slowly, due to the unavailability of the Defendant’s witnesses and other issues. I detail the procedural background here to clarify what has taken place in the many appearances before me to date.

[6] At a case conference on April 25, 2019, I limited the witnesses who were to be called on the trial of an issue to those relevant to the remaining issue. The trial of an issue was scheduled to proceed on May 23, 2019. On that date, Ms. Thelwell sought an adjournment until November 2019, when a criminal proceeding against her would be completed, which was dismissed. [1]

[7] At the hearing on May 23, 2019, the Plaintiff called no witnesses and Ms. Thelwell declined to cross-examine the Plaintiff’s affiant. The examination in chief and cross-examination of Ms. Thelwell and Mike Dmitrovic were completed. The Defendant’s additional witnesses, Mahin Momen and Daniel Kayfetz, were not available. A further hearing date was scheduled for August 8, 2019.

[8] Before the August 8, 2019 hearing date, both parties had sought to file further affidavit evidence on the motion for contempt. In my endorsement dated August 8, 2019, I ruled that since the Mr. Elaschuk had closed his case, further affidavit evidence could not be filed without leave, unless it constituted proper reply evidence. Similarly, since the Defendant had been cross-examined, she could not file a further affidavit of her own without leave.

[9] At the continued hearing on August 8, 2019, Ms. Thelwell sought an adjournment to allow time for the filing of the affidavits of Mahin Momen and Daniel Kayfetz. Since Mr. Momen was present that day and Plaintiff’s counsel was prepared to cross-examine him, no adjournment was granted. The examination and cross-examination of Mr. Momen were completed on that day. The cross-examination of Mr. Kayfetz was to be conducted at the next scheduled hearing date, or in the event that he was unavailable on that date, at the office of an official examiner before the next scheduled hearing date.

[10] Both parties then brought motions for leave to file further affidavit evidence, which I heard on November 4, 2019. In my endorsement dated November 9, 2019, I dismissed the Plaintiff’s motion. The Defendant withdrew her motion to file a further affidavit.

[11] Final argument on the contempt motion was scheduled to proceed on November 27, 2019. A couple days before the hearing date, counsel recently retained by Ms. Thelwell requested an adjournment in order to review the file and prepare. The hearing was adjourned to February 19, 2020.

[12] At the end of December 2019, Ms. Thelwell advised Plaintiff’s counsel that she dismissed her counsel and that she intended to consent to a finding of contempt. On that basis, a case conference was scheduled for January 3, 2020. At the case conference, I advised Ms. Thelwell that she should obtain legal advice before consenting to a finding of contempt. The February 19, 2020 date was maintained for Ms. Thelwell to confirm her position. A further hearing date was scheduled for March 30, 2020 for a penalty hearing, if necessary.

[13] On February 19, 2020, Ms. Thelwell advised the court that she no longer wished to consent to a finding of contempt and final argument on the motion was heard.

Issues

[14] In the March 2019 Endorsement, I found that the first two elements of the test for contempt were satisfied, as further detailed below. The only remaining issue is whether the Plaintiff has demonstrated the third element of the test, that Ms. Thelwell intended to do the acts that are alleged to breach the Order.

[15] Throughout the course of this proceeding, I have tried to explain the scope of the remaining issue and the fact that many of the matters raised by Ms. Thelwell are irrelevant to this issue. Nonetheless, Ms. Thelwell continues to raise, both in her affidavits and factum, a range of issues that are extraneous to the remaining issue on this motion. Ms. Thelwell has interpreted my attempts to limit the scope of this hearing to relevant evidence as my having predetermined the issue against her. This is an unfortunate misperception, given the lengths to which this court has gone to ensure Ms. Thelwell’s procedural fairness and to prevent any potential prejudice that could arise from the fact that she is self-represented.

[16] On this motion, I need not engage in a wholesale inquiry into the veracity of all the statements on the Personal Websites or the validity of any criminal charges against Ms. Thelwell. As is evident from the analysis below, my findings are limited to those necessary to the issue before me. I further note that any findings made in deciding the contempt motion are based on the evidence before me and for the purposes of the motion only and are not in any way binding upon a trial judge.

Analysis

The Test for Contempt

[17] The common law contempt power is codified in the Rules, which set out the orders that the court may make where a finding of contempt is made. Rule 60.11(5) provides:

In disposing of a motion under subrule (1), the judge may make such order as is just, and where a finding of contempt is made, the judge may order that the person in contempt,

(a) be imprisoned for such period and on such terms as are just;

(b) be imprisoned if the person fails to comply with a term of the order;

(c) pay a fine;

(d) do or refrain from doing an act;

(e) pay such costs as are just; and

(f) comply with any other order that the judge considers necessary,

and may grant leave to issue a writ of sequestration under rule 60.09 against the person’s property.

[18] On a motion for civil contempt, the moving party must prove contempt beyond a reasonable doubt. In order to meet the test for civil contempt, the following three elements must be established: (i) the order states clearly and unequivocally what should have been done; (ii) the party alleged to be in contempt has actual knowledge of the order; and (iii) the party alleged to be in contempt must have intentionally done the act that the order prohibits or intentionally failed to do the act that the order compels: Carey v. Laiken, 2015 SCC 17, [2015] 2 S.C.R. 79 at paras. 33-35.

[19] All that is required to establish civil contempt is proof beyond a reasonable doubt of an intentional act or omission that is in breach of an order. It is not necessary to demonstrate that the contemnor intended to disobey the order, as this would put the test “too high:” Carey, at para. 38.

The Parties’ Positions

[20] Mr. Elaschuk states that subsequent to the Order, false and defamatory statements about him were posted on two websites, www.jadenaraine.com and www.prettyandtheliars.com (the “Personal Websites”). Mr. Elaschuk further alleges that defamatory statements about him continue to appear on the websites listed on Schedule ‘A’ of the Order, as well as on other websites of a similar nature (together, the “Third Party Websites”). The Plaintiff recognizes that the evidence in support of the motion is entirely circumstantial but submits that no reasonable inference can be drawn other than that Ms. Thelwell intended to post the false and defamatory statements.

[21] Ms. Thelwell denies making the statements. Ms. Thelwell claims that the Personal Websites are maintained by “her record label,” Voodoo Records, and that her producer/manager, Milan (Mike) Dmitrovic, and other individuals update the websites. In respect of the Third Party Websites, Ms. Thelwell alleges a conspiracy among three men, including Mr. Elaschuk, who Ms. Thelwell claims are responsible for the statements. She alleges that they are posting the statements on the Third Party Websites so that she will be found in breach of the Order and, potentially, a bail condition that prohibited her from using the internet. Ms. Thelwell further argues that the statements were true.

Did Ms. Thelwell Breach the Order?

[22] As noted above, in my Endorsement dated March 29, 2019, I found that the first two elements of the test are met: (i) the Order states clearly and unequivocally what should have been done, and (ii) Ms. Thelwell has actual knowledge of the Order. There is no question that the Order is clear and that Ms. Thelwell had knowledge of it. Less than one week after the Order was made, the parties appeared before me at a case conference because more postings were made about Mr. Elaschuk. At the time, I explained the Order to Ms. Thelwell and the importance of complying with it. In addition, Ms. Thelwell’s appeal of my Order to the Divisional Court was dismissed, further demonstrating her knowledge of it.

The Personal Websites

Are the statements defamatory?

[23] The Personal Websites contain lengthy and detailed accounts of Ms. Thelwell’s interactions with various individuals, including Mr. Elaschuk and other men, as well as criminal and other legal proceedings in which she has been involved. Ms. Thelwell testified that this information has been put on her website to counter false statements made on the internet about her by others, including Mr. Elaschuk. Ms. Thelwell argues that this information is necessary to protect her public image as a country music singer.

[24] In my original endorsement of May 2018, I found that while certain statements about Mr. Elaschuk on the Personal Websites were negative, they were either opinion or were not “clearly defamatory” as required under the test for an interlocutory injunction to restrain alleged defamatory speech. Those included statements that Mr. Elaschuk was immature, dishonest, that he was not “boyfriend or husband material,” and that he followed “porn stars and escorts” on social media. It was not possible based on the limited record before me on the motion for an interlocutory injunction to make any findings as to the truth of the contents of any of those statements. Similarly, for the purposes of the contempt motion, I make no findings as to the veracity of similar statements posted on the Personal Websites after the Order.

[25] On this motion, Mr. Elaschuk submits that defamatory statements were made on the Personal Websites in breach of the Order. The following statements appear under the heading “Michael Elaschuk” on www.jadenaraine.com, as printed by Plaintiff’s counsel on November 20, 2018:

• “Michael began conspiring to commit perjury, public mischief, harassment and defamation.”
• “Michael Elaschuk would file frivolous, merit less [sic] police reports, with no evidence and engage in anonymous emails, and defamation against Jade, while working with other men who had her falsely charged, to cause harm against Jade.”
• “Michael would unite with other men and write racial hate speech about her on the internet. He would also lie in court to judges, and state that he did not know the other men, so that he could make it seem like he had clean hands.”
• “He was a very dishonest man who continuously tried to harm her with fraudulent reports and affidavits.”

[26] The same statements appear on www.prettyandtheliars.com, as printed on November 20, 2018.

[27] Based on a print-out of www.jadenaraine.com on December 19, 2018, additional paragraphs were added to the section regarding Mr. Elaschuk and this proceeding. On that date a further section was added under the heading “Lorne Honickman,” stating that he “engaged in shady behaviour when he represented Michael as a client of his that emotionally abused Jade.”

[28] On March 15, 2019, a further posting appeared on www.prettyandtheliars.com, under the heading “A Couple of More Men and the Harm they Caused” as well as the addition of “Salesforce” to the heading “Michael Elaschuk.” The additional text alleges that Mr. Honickman “lied about Michael not knowing the other men.”

[29] The allegations that Mr. Elaschuk conspired to commit criminal offences, including perjury; that he filed fraudulent police reports and false affidavits; and that he wrote racial hate speech about Ms. Thelwell are all defamatory in nature. They are serious allegations that go beyond alleging dishonesty in a romantic relationship. Moreover, they purport to be statements of actual fact, as opposed to opinion.

[30] Filing false police reports and lying to the court are criminal offences. Society has a basic expectation that individuals will be truthful in reporting matters to the police, because alleging criminal behaviour has serious consequences for the individual against whom such a complaint is made. Similarly, honesty is a fundamental tenet of our justice system, in which decisions are based on evidence that relies on the parties and witnesses before it to be truthful. For a party before the court to swear a false affidavit is antithetical to engaging its processes and jurisdiction. Alleging such conduct impugns an individual’s honesty and integrity and would lower the person’s reputation in the estimation of reasonable people and expose him to contempt: Henderson v. Pearlman, [2009] O.J. No. 3444, at para. 46.

[31] Similarly, the statement that Mr. Elaschuk “writes racial hate speech” about Ms. Thelwell on the internet is also a serious allegation. Such a statement puts a person in a category of vindictive, racist and cowardly individuals who foment hate toward specific racialized groups online. A person who writes racial hate speech online is viewed with particular abhorrence because their conduct exploits the right to freedom of expression for purposes contrary to the fundamental values of Canadian society, including equality. This allegation also exposes Mr. Elaschuk to contempt and is defamatory.

Did Ms. Thelwell make or publish the statements or cause them to be published?

[32] In her defence, Ms. Thelwell argues that she did not post, and could not have posted, the statements to her Personal Websites, because she was subject to a bail condition prohibiting her from using the internet. Ms. Thelwell testified that the Personal Websites are maintained by her “record label.” She testified that individuals such as her producer/manager, Milan (Mike) Dmitrovic, and various interns posted information to the websites as they saw appropriate to maintain her image.

[33] It is necessary to note at the outset that the Order did not just prohibit Ms. Thewell from publishing false or defamatory statements on the internet. The Order required that Ms. Thelwell refrain from “causing to be published any false or defamatory statements relating to the Plaintiff whether oral, written, or distributed via the internet[.]” The Plaintiff thus need not demonstrate that Ms. Thelwell herself posted the statements to her Personal Websites.

[34] Moreover, a person can be held liable for defamation even if they did not publish the statement themselves. It is sufficient that the person authorized the publication or knew about the publication and acquiesced to it:

Any person who participates in the publication of a defamatory statement in furtherance of a common design is responsible as a publisher of the statement. A person who writes a libel, a person who repeats it, and a person who approves it are all responsible for the making of the libel…. A person who encourages the primary author to publish a libel, or supplies the author with defamatory information intending or knowing that it will be published, may also be liable.

Halsbury’s Laws of Canada, “Defamation 2018”, (Toronto: LexisNexis Canada, 2018 Reissue), at HDE-50, p. 178 (internal citations omitted) [Halsbury’s]

[35] In addition, a defendant is responsible for a publication that the defendant has instructed another to make, or where the defendant has authorized the publication expressly or implicitly. Authority may be inferred from the circumstances: Halsbury’s, HDE-50, p. 179 (internal citations omitted).

[36] In any event, in an email to Plaintiff’s counsel, Ms. Thelwell stated that the words were hers and that she took responsibility for them: “as previously mentioned, what is posted on my website are my words. The domain owned by my record label, and there are many assistants and interns who manage updates. Any potential defamation action should be directed to me as I’m responsible for the words in question[.]” On cross-examination, Ms. Thelwell acknowledged that this was her opinion and that “of course it’s not their words because they don’t have the knowledge. If I never told them about it, it wouldn’t – they wouldn’t know about it.”

[37] In her affidavit, Ms. Thelwell stated: “The only thing I take responsibility for is the update on my website. My website contains a based on a [sic] true synopsis of my life, which is being made into a film.” Ms. Thelwell further testified as follows:

Q. If Mike Dmitrovic put something up that you don’t like, you could say, “Mike, take that down. Don’t write that about Michael. I told you about that Mike, don’t put that.” You could do that, right? A. Well, if it’s subject to a formal hearing where it becomes an issue, obviously I would let my producer that your statement that you put on my website has become an issue, could you please remove it? And I’m sure he would be more than willing. Q. Right. A. He doesn’t want to cause trouble. Q. You’re responsible for what goes up there, ultimately. It’s your words as you’ve told Mr. Alton and I back on November 20th, 2018. A. I’m not responsible for what goes up there. My producer and the interns still decide what’s relevant to protecting my image and, and the record label.

[38] Although Ms. Thelwell suggested that Mr. Dmitrovic and “the interns” had control over her Personal Websites, Mr. Dmitrovic’s testimony as to his level of involvement with the Personal Websites was significantly less than Ms. Thelwell’s evidence suggested. Mr. Dmitrovic admitted to making only one update to www.jadenaraine.com in February 2018 to post a complaint about a Toronto Police Service officer to the website. Mr. Dmitrovic did not admit to drafting the content regarding Mr. Elaschuk.

[39] Mr. Dmitrovic admitted that he owns the domain names for the Personal Websites but disclaimed any responsibility for the content of the Personal Websites:

Q. Are you the administrator of the site? A. No. Q. So you have no responsibility, at all? A. A hundred percent. And Luke Halstead [2] just found out from my lawyer how, how frivolous his lawsuit is. This is what I’m saying, you guys have no clue what you’re talking about. Q. His lawsuit. You’re being sued by Mr. Halstead? A. That’s right, and I am making sure that my lawyers is an [expensive] team of lawyers, so he gets stuck with costs, that’s right. Q. Let’s get back to jadenaraine.com, okay? You have the ability to grant people access to edit the site, right? A. No. Q. Didn’t you say at, at Ms. Thelwell’s bail hearing that you gave Ms. Thelwell access to the website for a week when you were, when you were out of town? A. Yes, because at that point I had the username and password, but I don’t know if that username and password has been changed. There’s so many people that have access to this. We have for six months – there was a chalk billboard with her username and password, because there’s so many people that have seen her story on CBC that phoned, showed up, emailed, just showed up in person to help. Q. So getting back to this. In February 2018, you had a username and password to get on the site to post? A. I was not the only one. I’m just saying there was a lot of people. Q. Right. And you’ve given that access to, for example, Mr. Momen, and other interns, right? A. It’s not me. It was written on the chalkboard in a big room like this, and anybody… Q. A chalkboard where? A. At my studio, in my studio space, and I own three. Q. So on your studio you put on the chalkboard the username and password to be able to get on the website? A. That’s right.

[40] Mr. Dmitrovic admitted that Ms. Thelwell also had access the username and password. As to how information was posted to the Personal Websites, Mr. Dmitrovic testified as follows:

Q. And that’s exactly how something that Ms. Thelwell composes could end up on jadenaraine.com or prettyliar. She provides the content to somebody who then accessing the website and posts it, correct? A. Yes. So you could have it that way, or you could have it room full of people who are being briefed, because they really want to know – there’s like, some – a lot of bloggers, a lot of, like, amateur journalists that show up, interested in these stories, including CBC Q. Yeah, you’ve said that many times. A. Yeah. So they would show up either at Starbucks, Tim Hortons, my place, my boardroom, and they would get briefed from her what’s going on, what’s the latest, and then she lets them know and they decide whatever they want to do. Q. Right. So she provides the information and then they – they’ll they post? A. They do it anyway – yeah, they can – they just word it their way. Q. So… A. She doesn’t give them stuff, that I’ve seen, necessarily, in writing.

[41] As evident from the cross-examination testimony, Mr. Dmitrovic sought to minimize his role and involvement in Ms. Thelwell’s Personal Websites and any communications on her behalf. The excerpt above also demonstrates that, rather than answer questions in a straight-forward manner, Mr. Dmitrovic was frequently hostile and argumentative, and sought to testify to matters outside the scope of the questions asked.

[42] Another individual whom Ms. Thelwell identifies as having made updates to the Personal Websites is Mahin Momen. Mr. Momen was not an employee of Voodoo Records but simply an individual who came to the studio and volunteered his time. In his testimony, Mr. Momen admitted to making updates to Ms. Thelwell’s website. Mr. Momen further testified that the information came from Ms. Thelwell and could be removed at her request:

Q. Right. She’s providing you, as she testified to, she’s provide… it’s her words. Correct? A. Mm hmm. Correct, it’s her words. She was telling us about it. Right? Q. Right. A. But did she say, direct it, “post it like this. Post it right now,” was there exact command there, that happened? She was coming back from this. Again, she’s depressed, heavy emotional toll on her. We have a community vibe, a familiar vibe there, and she was expressing her thoughts, sharing with us, and, from that, we took initiative to take defensive measures against the attacks on the brand. Q. Using her words? A. Who else’s words would we use if it, if she’s the brand? Q. Right, so it’s not just you sitting around a room with other interns, saying “Whoa, we’re under attack. Let’s get on there right now,” and you start creating this, what we say, defamatory content; you’re using her words, Right? A. For her. Q. What she told the Court’s correct? A. Correct.

[43] Mr. Momen later admitted that Ms. Thelwell could request that they take down information:

Q. And one of the most important things, of course, is, if Ms. Thelwell saw something on that based on after she’s told you the words, you post it, and, if she came back to you and said, “Hey, take that down because, you know, that could cause problems,” you could do that immediately. Right? A. Correct. Q. And, as far as the websites are concerned, was it your understanding that Ms. Thelwell was the person who designed and paid for them and was responsible for all of the content and administration? A. Yes. She has the hosting. I think she has the hosting, I think HostGator or something, one of the hosting contents.

[44] On the one hand, Ms. Thelwell argues that the Personal Websites were to maintain her “brand” and public image and that it was necessary to include detailed accounts of her intimate relationships and legal troubles to inform radio stations, media and fans who were inquiring about her. On the other hand, Mr. Dmitrovic testified that the password was on a chalkboard in the studio and that any number of 25 to 30 unnamed volunteers who “phoned, showed up, emailed” to help Ms. Thelwell could access the Personal Websites and edit the content. It is illogical that both Ms. Thelwell and her record label would surrender so much control over the content of the Personal Websites to unnamed third parties. The Defendants’ witnesses identified, at most, four other individuals who were involved in making updates to the Personal Websites: Sean Gregory, Melissa Klein, Catherine White and “El Producto.” It is especially farfetched that the Personal Websites would be left to be updated by “interns” when Ms. Thelwell is being sued for defamation and subject to the Order.

[45] Equally implausible is Ms. Thelwell’s argument that she had to include detailed accounts of her intimate relationships to maintain her public image but that she did not have control over what was posted. Moreover, the lengthy and detailed accounts on the Personal Websites appear to be more of an unedited, stream of consciousness rant than a legitimate public relations exercise. The print-out of www.jadenaraine.com begins by describing Ms. Thelwell as “the first girl in Canadian history to have her charter of rights breached by the Canadian government.” Remarkably, it does not mention anything about Ms. Thelwell being a recording artist until approximately 10 pages later. At various times, the account slips from the third person into the first person, for example, when it states: “I believe I was prejudiced in this case because I was a self-represented litigant” or “Only 1 in 1000 sexual assaults in Quebec, lead to conviction. That irks me.” The account ends with “Love, Jade” indicating that it is meant to be read as written by her.

[46] In any event, accepting the testimony of the Defendant’s witnesses as to how the Personal Websites were updated, it was Ms. Thelwell who conveyed the information contained in the defamatory statements identified above to individuals such as Mr. Momen, who then put the statements on the websites. The statements could not have been posted without Ms. Thelwell’s involvement and acquiescence. Even if she did not personally post the statements, she conveyed the information with the expectation that it would be posted in order to, in her view, maintain her image. Ms. Thelwell could have, but did not, request that the statements be taken down.

[47] Accordingly, I find that Ms. Thelwell caused defamatory statements to be published to the Personal Websites.

The Third Party Websites

Are the statements defamatory?

[48] After the Order was made, further statements about Mr. Elaschuk appeared on the following Third Party Websites:

• www.badbizreport.is
• www.liarsandcheaters.com
• www.datingpsychos.com
• www.cheatersandbastards.com
• www.stinkypedia.com
• www.exposecheatersonline.com
• www.cheaterplanet.com
• www.dirty.com
• www.reportcheater.com
• www.cheatland.com
• www.wtfrus.com
• www.infidelitywebsite.com
• www.wtfscam.org
• www.badgirlreports.date
• www.internetcheaters.com
• www.cheaterboard.com

[49] One group of postings appeared between May 25 to 27, 2018, shortly after the Order was made. A second group of postings appeared between July 23 to 24, 2018, after an order made by Lederer J. in a proceeding commenced by Ms. Thelwell against Andrei Korottchenko. Mr. Elaschuk has also identified certain postings made on September 7, 2018 and on January 14, 2019. Another series of posts appeared from May 12, 2019.

[50] The postings on the Third Party Websites make the following statements about Mr. Elaschuk:

• He has “borderline personality disorder,” is a “predator,” an “online hunter,” “a drug user but not heavy drugs,” a “liar and a criminal,” he “tries to get girls in trouble with the police without evidence to revenge”;
• He is “part of a group of predators” and “friends with a rapist”;
• He is a “Salesforce womanizer and abuser”;
• He “lives a hidden lifestyle of a Toronto s*x predator who looks for young vulnerable women online,” he “has abused dozens of women,” he “was diagnosed with BPD in 2015 and has suffered from behavioural and sexual addictions and issues for years,” “harasses women, tortures them and defames them online.” “Major psychopath!!!!”;
• He “is a psychopath from Toronto Ontario,” and “is known to be one of the top 5 Toronto online scum bags for abusing women”;
• He “locates young girls on dating apps”;
• He “commits perjury and fraud as well”;
• He “is a sexual predator and pathological liar from Toronto,” “engages strippers, prostitutes, escorts and **** stars and supports *** clubs, orgies, rape and drugs”; and
• He is a “pedophile”.

[51] Ms. Thelwell admitted to posting comments about Mr. Elaschuk and other men “at the conclusion of her relationship with them, with the intent of explaining to fans what happened and to prevent further harm to other women the men may approach and deceive.” She maintains that she did not post after the initial posting.

[52] A number of the above statements are defamatory. In my May 25, 2018 Endorsement, I previously addressed why many of the statements, such as calling someone a predator and alleging that they target young girls, would be considered defamatory. In referring to “young girls” Ms. Thelwell may have been referring to women her own age. However, “girls” and especially “young girls” in this context is commonly understood to refer to under-aged females. In this context, where Mr. Elaschuk is also described as a “sexual predator,” it suggests behaviour that is particularly depraved and reprehensible. There is no evidence to suggest that Mr. Elaschuk targets under-aged minors or that he is a predator. Similarly, calling someone a psychopath and a pathological liar are defamatory statements.

Did Ms. Thelwell make or publish the statements or cause them to be published?

[53] Mr. Elaschuk argues that based on the timing and content of the statements on the Third Party Websites, this court may draw the inference that they were made by Ms. Thelwell. He submits that the postings that appeared from May 25 to 27, 2018 were made in response to the Order and that the postings that appeared from July 23 to 24, 2018 were made immediately after Lederer J.’s endorsement of July 23, 2018. On both occasions, Ms. Thelwell expressed her disagreement with the decisions in lengthy emails to the court and opposing counsel. Mr. Elaschuk’s theory is that Ms. Thelwell was upset by both orders and responded by posting defamatory statements about him on the Third Party Websites.

[54] On May 25, 2018, after my Order was released to the parties, but before it was public, a posting appeared on www.badbizreports.com specifically referring to the contents of the decision. The posting states that “[t]he judge just told her not to post any defamatory postings, but told her that the posting on her website is not defamatory because she was able to prove it.” That posting also refers to Mr. Elaschuk as a predator, “an online hunter from Toronto” and states that he “has borderline personality disorder and was diagnosed October 2015.”

[55] Ms. Thelwell’s theory is that Mr. Elaschuk shared the Order with one or more of the other individuals in the alleged conspiracy against Ms. Thelwell. She alleges that it was Mr. Elaschuk or one of the other individuals who posted the statements on the Third Party Websites in order to make it appear that she breached the Order or the bail condition prohibiting her from using the internet.

[56] It is highly unlikely that Mr. Elaschuk would post, or permit to be posted, a defamatory statement about himself for the purpose of getting Ms. Thelwell in trouble. This would be contrary to the purpose of Mr. Elaschuk’s lawsuit and going to the expense and effort of obtaining an injunction against her. Mr. Elaschuk is seeking to remove and address defamatory statements about him online. It belies logic that he would post defamatory statements about himself or permit another individual to do so. Moreover, other than Ms. Thelwell’s theory, there is no evidence that Mr. Elaschuk provided the Order to one of the other individuals alleged by Ms. Thelwell to have participated in the posting.

[57] In R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at paras. 37-38, the Supreme Court of Canada stated:

When assessing circumstantial evidence, the trier of fact should consider other plausible theories and other reasonable possibilities which are inconsistent with guilt. I agree with the appellant that the Crown thus may need to negative these reasonable possibilities, but certainly does not need to negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused. Other plausible theories or other reasonable possibilities must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation.

Of course, the line between a “plausible theory” and “speculation” is not always easy to draw. But the basic question is whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty.

(Internal citations and quotations omitted)

[58] In this case, based on the overwhelming circumstantial evidence, and the absence of a plausible theory that is not more than speculative, I find that the Plaintiff has demonstrated beyond a reasonable doubt that Ms. Thelwell published, or caused to be published, the May 25, 2018 posting to www.badbizreport.com.

[59] It is not necessary to make any findings as to the existence or non-existence of the alleged conspiracy between Mr. Elaschuk and the other individuals. I note, however, that the evidence before me regarding the alleged conspiracy was entirely based on inadmissible hearsay evidence. Ms. Thelwell relied on letters written by her criminal lawyer, Daniel Kayfetz stating that there was evidence of collusion between the men in the police disclosure. Despite multiple opportunities, Mr. Kayfetz did not appear as a witness. Mr. Momen’s evidence as to the existence of the conspiracy is based on a statement allegedly made by Luke Halstead.

[60] In respect of the other postings on the Third Party Websites, I do not find that Mr. Elaschuk has demonstrated beyond a reasonable doubt that Ms. Thelwell published the defamatory statements or caused them to be published. The postings on Third Party Websites that follow the May 25, 2018 posting present a particular difficulty because once a statement is posted online, it can take on a life of its own. Statements can be picked up and re-posted by almost anyone. It is difficult to determine who has control or responsibility for them.

[61] The Plaintiff argues that the consistency in language between the posts leads to an inference that they were made by the same author, Ms. Thelwell. However, the similarity in language is also consistent with the statements having been copied from earlier posts that are already online. Indeed, the postings made in May 2019 mirror the language contained in the original posts that were before me on the injunction motion in May 2018, including references to “that ring,” the Porsche and following porn stars and strippers. While it may be more likely than not that Ms. Thelwell made the further statements on the Third Party Websites besides www.badbizreports.com, I am not prepared to find that this has been proven beyond a reasonable doubt. Unlike the May 25, 2019 posting on badbizreports.com, in respect of the other Third Party Websites, there is a plausible alternative explanation.

[62] In the Order, I required that Ms. Thelwell make best efforts to remove the defamatory statements from the Third Party Websites, in recognition that once posted, Ms. Thelwell did not have complete control over the statements. At the time, Plaintiff’s counsel indicated that they would be satisfied with best efforts.

Does Ms. Thelwell Have a Valid Defence?

[63] Ms. Thelwell argues that because she believed the statements on her Personal Websites to be true, she did not understand that they would be in breach of the Order. This argument is without merit. The Endorsement was specific in distinguishing the statements that were false and defamatory, and therefore objectionable, from those that were not. There is a difference between saying that someone is not “boyfriend material” and that they filed fraudulent police reports and affidavits and wrote racist hate speech.

[64] Other than to allege the existence of a conspiracy among Mr. Elaschuk and others, Ms. Thelwell did not adduce evidence that Mr. Elaschuk specifically had filed a false or fraudulent police report. Based on the evidentiary record, this statement is therefore false and defamatory and in breach of the Order. Since the Personal Websites state that Mr. Elaschuk filed a false police report, it would not be sufficient for Ms. Thelwell to show that one of the other men in the alleged conspiracy filed a false report.

[65] The statement that Mr. Elaschuk filed a false affidavit refers to Mr. Elaschuk’s affidavit on the injunction motion. Ms. Thelwell continues to insist that Mr. Elaschuk made false statements in the affidavit and that I erred in accepting his evidence. It was up to Ms. Thelwell to demonstrate through cross-examination that the facts sworn to in Mr. Elaschuk’s affidavit were inaccurate or untrue. Having failed to challenge Mr. Elaschuk’s evidence by the available procedural means, Ms. Thelwell cannot now take matters into her own hands and state online, without proof, that the affidavit is false.

[66] On the allegation of racist hate speech, Ms. Thelwell submits that the men involved in the conspiracy against her, including Mr. Elaschuk, are responsible for negative statements about her on some of the same Third Party Websites, including that she is a “stupid black ***** with STD” or an “ugly black prostitute who stalks men.”

[67] While the statements are likely offensive to Ms. Thelwell and the reference to her racial origin is gratuitous, they do not constitute hate speech. The term “hate speech” has a particular meaning and refers to expression that a reasonable person, aware of the context and circumstances, would view as likely to expose persons to detestation and vilification on a prohibited ground of discrimination. Such expression vilifies a target group by “accusing them of disgusting characteristics, inherent deficiencies or immoral propensities which are too vile in nature to be shared by the person who vilifies”: Whatcott v. Saskatchewan Human Rights Tribunal, 2013 SCC 11, [2013] 1 S.C.R. 467, at para. 43. The statements about Ms. Thelwell do not bear the “hallmarks” of hate speech identified by Rothstein J. in Whatcott, at para. 43, such as being a powerful menace, carrying out secret conspiracies, or plotting to destroy civilization; labelling them as criminals, parasitic, or pure evil; equating the targeted group with groups traditionally reviled in society such as child abusers or deviant criminals; dehumanizing the targeted group by describing them as animals, lesser creatures, or the like.

[68] In addition, there is no evidence that it was Mr. Elaschuk who posted the statements regarding Ms. Thelwell on the Third Party Websites. The statement that Mr. Elaschuk writes racial hate speech is therefore false and defamatory.

Summary

[69] Based on the foregoing, I find that Ms. Thelwell published or caused to be published the defamatory statements on the Personal Websites. Ms. Thelwell also published or caused to be published the defamatory statement on www.badbizreports.com on May 25, 2018. Therefore, she has breached the Order and is in contempt.

Purging the Contempt

[70] A contemnor must be afforded the opportunity to purge the contempt before the penalty hearing. The extent to which the contemnor has purged the contempt will be a relevant factor in determining the appropriate penalty: Boily v. Carleton Condominium Corp. 145, 2014 ONCA 574, at para. 121:

[71] In order to purge the contempt, Ms. Thelwell must do the following:

(a) Delete all defamatory statements about Mr. Elaschuk and Mr. Honickman on the Personal Websites, www.jadenaraine.com and www.prettyandtheliars.com, by March 6, 2020;

(b) Provide proof of written requests to all of the identified Third Party Websites listed in these Reasons and in Schedule ‘A’ of the Order that they delete all defamatory statements regarding Mr. Elaschuk and Mr. Honickman from those websites; and

(c) Comply with the Order, including refraining from publishing and causing to be published any further defamatory statements about Mr. Elaschuk or Mr. Honickman; and

(d) Pay outstanding costs awards in this proceeding, if any.

[72] At the hearing on February 19, 2020, Ms. Thelwell advised the court that the content on her website, www.jadenaraine.com, has been edited significantly to delete references to various individuals and to provide only a brief account of her story. I was not provided with any print-outs and cannot say whether the current content of the Personal Websites would be in compliance with the Order.

Conclusion

[73] The motion for contempt is granted. The parties shall deliver written submissions on penalty as follows:

(a) By March 16, 2020, the Defendant shall serve an affidavit attaching documentary evidence to support her efforts at purging the contempt;

(b) The Plaintiff’s factum shall be served and filed by March 20, 2020;

(c) The Defendant’s factum shall be served and filed by March 25, 2020; and

(d) Plaintiff’s counsel shall file a motion confirmation form listing all material necessary for the hearing.

[74] There will be no adjournment of the penalty hearing other than for exceptional circumstances which will require proof by medical documentation.

Nishikawa J. Date: March 4, 2020

Footnotes:

[1] It appears that this date was subsequently adjourned. [2] Luke Halstead is one of the individuals who Ms. Thelwell alleges is involved in a conspiracy with Mr. Elaschuk. The other individual is Andrei Korottchenko.