Maison Privé v. Moghtadaei, 2020 ONSC 8199

COURT FILE NO.: CV-20-645755

DATE: 20200930

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: MAISON PRIVÉ, dba PORTER PRIVÉ, Plaintiffs

AND:

ALI MOGHTADAEI and SEPIDEH MOAZZANI, Defendants

AND:

ALI MOGHTDAEI and SEPIDEH MOAZZANI, Plaintiffs by Counterclaim

AND:

MAISON PRIVÉ, dba PORTER PRIVÉ, JEFFREY BERK and MICHELLE BERK, Defendants to the Counterclaim

BEFORE: J. Steele J.

COUNSEL: Jordan Goldblatt and Michele Valentini, for the Plaintiffs, Maison Privé

P. James Zibarras, John Philpott and Matthew G. Smith, for the Defendants/Plaintiffs by Counterclaim

No one appearing for Jeffrey Berk and Michelle Berk

HEARD: September 23, 2020

ENDORSEMENT

[1] Technology is an amazing tool. It has changed the way we all work and live in so many ways. In the current times of COVID-19, technology has facilitated the continuation of work and education for many. However, technology has also given rise to new ways for harassment to occur and it can proliferate defamatory and hateful content at remarkable speed, with the click of a button. Pictures and words can live on indefinitely on the web, accessible to all. So not only is the web an amazing and important tool, it can also be a dangerous one if used for malicious purposes.

[2] This is a motion for interim relief by Ali Moghtadaei (“Ali”) and Sepideh Moazzani (“Sepideh”). Ali and Sepideh seek an order that Maison Privé (“Privé”), Jeffrey Berk (“Jeffrey”) and Michelle Berk (“Michelle”), the defendants to the counterclaim, (i) be required to remove from the internet all words or images related to Sepideh and Ali and all words and images derived from the execution of the AP Order (defined below) and/or in compliance with the Mareva Order (defined below), (ii) be restrained from publishing or broadcasting any further defamatory words or images, including defamatory words concerning the ongoing ligation, (iii) be restrained from publishing any images, information or defamatory words derived from the execution of the AP Order or the Mareva Order, and (iv) be restrained from contacting or communicating with Ali, Sepideh or their immediate relatives.

[3] I am troubled by the extent, volume and content of the internet posts related to this interim motion. For the reasons set out below, the orders sought by Sepideh and Ali are granted.

[4] This motion was scheduled on an urgent basis by the defendants and was heard on September 23, 2020.

Background

[5] Privé is an American company in the business of selling luxury handbags, watches and accessories. It does not have a brick-and-mortar location; instead, it sells from its website (www.priveporter.com) and its Instagram account (@priveporter). The Privé Instagram account has approximately 124,000 followers. It is a public account.

[6] The principals of Privé are Jeffrey and Michelle, both of whom reside in Florida. Jeffrey and Michelle are spouses. Jeffrey’s affidavit, dated August 18, 2020, states that “I am the operating principal, registered agent, and authorized representative of Maison Privé…, the Plaintiff in this Action, and as such, have knowledge of the matters contained in this Affidavit. I run Privé with my wife, Michelle Berk…”.

[7] Sepideh and Ali both reside in Toronto. Ali is Sepideh’s boyfriend. Ali is a real estate agent and also chairman of the board of directors of Benzoil, which is based in Dubai. Sepideh’s real estate license is currently under suspension. Her other business involves luxury goods, operating through online forums and word of mouth.

[8] Michelle and Sepideh became acquainted through social media and exchanged significant friendly text banter regarding, among other thing, purses and watches. Ultimately, Sepideh and Privé engaged in certain transactions. Michelle was the key Privé contact dealing with Sepideh. Privé and Sepideh entered into a transaction in early 2020, where Privé purchased from Sepideh a high-end handbag. Sepideh’s affidavit, dated September 15, 2020, indicated that the consideration for the handbag included cash and other handbags. There seems to have been some disagreement on valuation issues in respect of this initial transaction.

[9] In March 2020, Sepideh and Ali visited Michelle and Jeffrey at their home in Delray Beach, Florida. Following that visit, Sepideh and Michelle continued their friendly text banter, and entered into the transaction leading up to the main action.

[10] The key transaction at issue involved the transfer by Privé of cash and certain Hermès handbags to Sepideh, in exchange for which Sepideh was to transfer certain high-end rare watches to Privé. Privé sent cash and three handbags to Sepideh (transfers taking place between July 27, 2020 and August 10, 2020). Sepideh has not transferred the watches. These arrangements between the parties were not memorialized in any written contracts. There appear to be valuation issues regarding certain of the exchanged items, and a misunderstanding regarding the total consideration, among other things. Privé made a demand for return of the cash and consideration for the three handbags that Privé had sent to Sepideh.

[11] An ex parte motion was brought by Privé for urgent injunctive relief in the form of (i) an interim Mareva injunction restraining Sepideh from dissipating her assets (the “Mareva Order”); and (ii) an Anton Piller injunction (the “AP Order”) directing an Independent Supervising Solicitor to enter into Sepideh’s premises and to take possession of relevant evidence. Based on the evidence before the Court, the ex parte interim injunctions were granted on August 21, 2020. These matters are to come back before the Court.

[12] The AP Order was executed at Sepideh’s residence on or about August 22, 2020.

[13] Due to the problems in their business relationship, and in particular Sepideh’s failure to transfer the watches to Privé, the relationship between Michelle and Sepideh soured sometime around the middle of August 2020, shortly before Privé brought its motions for the Mareva Order and AP Order. At that time, Michelle started sending threatening and hateful messages to Sepideh through various media and commenced a relentless campaign of Instagram posts and stories.

[14] Prior to bringing this motion for injunctive relief, counsel for the defendants sent a letter to Privé’s counsel demanding that the posting of defamatory and harassing posts cease and that the current posted content be removed. When the posting continued, a follow up letter was sent re-iterating the demand. However, Michelle continued to post threatening posts and hateful messages. Accordingly, Sepideh and Ali brought this motion for interim injunctive relief.

Preliminary Matters

Section 136 of Courts of Justice Act

[15] At the outset of the hearing of the motion, as there were unidentified audio listeners at the Zoom proceeding, all parties were reminded of Section 136 of the Courts of Justice Act, which, subject to limited exceptions, and among other things, prohibits any person from (i) taking or attempting to “take a photograph, motion picture, audio recording, or other record capable of producing visual or aural representation by electronic means or otherwise at a court hearing”; or (ii) publishing, broadcasting, reproducing or otherwise disseminating a photograph, motion picture, audio recording or record taken in contravention of (i).

Service on Michelle and Jeffrey

[16] Counsel for Privé indicated at the outset of the hearing of the motion that they represent the company, and not Michelle and Jeffrey in their personal capacities. In their factum Privé stated that “[t]he principals of Privé are Jeffrey and Michelle. They live in Florida. While they are named respondents on the motion, and defendants to the Defendants’ counterclaim, they have not been served.”

[17] Michelle and Jeffrey are the principals of Privé and Michelle was the primary negotiator with Sepideh. There was no indication that Michelle and Jeffrey personally would attempt to invoke the corporate veil of Privé and not accept service through Privé’s counsel until September 17, 2020. Further, it was not until September 21, 2020 that Jeffrey and Michelle first raised a question about whether they would attorn to the jurisdiction of the Ontario Courts, notwithstanding that Privé has sought relief from the Court on a directly related matter.

[18] Sepideh’s affidavit evidence addressed the attempts at service of the motion materials on Michelle and Jeffrey. Plaintiff counsel was asked on three occasions to advise whether they would accept service on behalf of Michelle and Jeffrey. On or about September 17, 2020, plaintiff counsel wrote to advise that they did not have instructions to accept service on behalf of Jeffrey or Michelle. Michelle and Jeffrey have refused to allow counsel for Privé to accept service on their behalf, despite the fact that they both reside in Florida, there is an ongoing global pandemic, and they are, as set out in their materials, the principals of Privé. Presumably, Jeffrey and Michelle are instructing Privé’s counsel. It is plain that they are aware of the steps that have been taken in this litigation.

[19] Where a document has been served in a manner other than one authorized by the Rules of Civil Procedure, Rule 16.08 permits the Court to make an order validating service if the Court is satisfied that the document came to the notice of the person to be served, or the document was served in a manner that it would have come to the person’s notice except for the person’s own attempts to evade service.

[20] I have absolutely no doubt that the defendants’ motion materials and the Statement of Defence & Counterclaim would have come to Jeffrey and Michelle’s attention. I thus validate the service on Jeffrey and Michelle by email of the defendants’ motion materials and Statement of Defence & Counterclaim in accordance with the attached Order. In making this Order, I note the following:

a. Jeffrey and Michelle are the principals of Privé;

b. The affidavit evidence filed with the Responding Motion Record of the plaintiff Privé is a detailed affidavit of Jeffrey Berk; and

c. On September 21, 2020 at 4:37 p.m., counsel for the defendants sent an email to the parties and me regarding the filing of the Supplementary Motion Record, Factum, Compendium and Draft Order on a document sharing platform where all the defendant’s motion materials were housed. The email went to the known email addresses of Michelle and Jeffrey. Michelle replied all from her email address: “Please remove me from this email thread and limit all contact to our attorneys.” I also note that the email address that Michelle used for this reply is the same one she used to send a threatening email to Sepideh on August 15, 2020 (referred to below).

[21] I further note that the evidence before the Court in this case is so overwhelming as against Michelle in particular that I would be prepared to grant an ex parte interim injunction.

[22] In terms of the evidence before the Court, Michelle did not provide any affidavit evidence. Jeffrey provided the affidavit evidence for Privé.

New Motions of Plaintiff

[23] At the hearing of the defendants’ motion, the plaintiff sought to have a cross-motion heard for leave to amend the Statement of Claim in the form attached to their Notice of Motion and for injunctive relief related to an Instagram account known as @scamialert.

[24] Under Rule 26.01 of the Rules of Civil Procedure the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment. The defendants did not raise any objection to this request. I therefore grant leave to the plaintiff, Privé, to amend its Statement of Claim in accordance with the form attached as Schedule “A” to its Notice of Motion dated September 17, 2020.

[25] The plaintiff’s proposed injunction related to the @scamialert Instagram account was not scheduled and no notice had been given to the defendants. The parties had been before the Court on September 11, 2020 for the purposes of scheduling the defendants’ urgent injunctive motion and certain other motions to be heard in November. Based on the evidence before me, the plaintiff would have been aware of that Instagram account before the September 11, 2020 attendance. The plaintiff’s evidence includes posts from that account dating back to August 18, 2020. The plaintiff did not raise at either case conference held before me (on September 9 and 11, 2020) that they intended to bring a cross-motion for injunctive relief related to an Instagram account. Further, as set out in Sepideh’s affidavit (September 21, 2020), there was no demand made by Privé to remove this @scamialert account or to identify the controller of the account. The defendants did not consent to the plaintiff’s cross-motion being heard. The Court had set aside limited time for the defendants’ injunction motion, and the defendants did not have notice of the plaintiff’s cross-motion.

[26] The plaintiff will have to schedule a timeline for the hearing of their injunctive relief motion and may reach out to my judicial assistant to set up a scheduling case conference. Alternatively, the cross-motion may be heard when the parties are back before me on November 3 and 6, 2020.

Analysis

Injunction Restraining Michelle, Jeffrey and Privé from Contact with Ali, Sepideh and family

[27] The first order sought by the defendants is to restrain Jeffrey, Michelle and Privé from contacting or communicating with Sepideh, Ali or their immediate families and to restrain them, other than by lawful authority or Court Order, from coming within one thousand (1000) metres of Sepideh’s residence, Ali’s residence, Ali’s parents’ residence or Sepideh’s mother’s residence.

[28] The test for a pre-trial injunction is set out in RJR MacDonald Inc. v. Canada (Attorney General) 1994 SCC 117 at para. 48 (the “RJR Test”):

a. There is a serious question to be tried;

b. The applicant will suffer irreparable harm if the injunction is not granted; and

c. The balance of convenience favours the applicant’s request for injunctive relief.

[29] In determining whether there is a “serious question to be tried”, the Court must be satisfied that “the claim is not frivolous or vexatious.” In their counter claim, Sepideh and Ali have plead breach of privacy torts, including intrusion upon seclusion and public disclosure of private facts. Based on the extensive evidence before me, which I discuss in more detail below, the breach of privacy claims are not frivolous or vexatious. For example, there are published images of Sepideh in her own home, taken from when the AP Order was executed.

[30] To show urgency that justifies granting an interim injunction, the Defendants are required to show that there is “an imminent threat of irreparable harm.” Irreparable harm is injury that cannot be quantified in monetary terms or cannot be cured, such as “irrevocable damage to its business reputation.” Irreparable harm must also be established by clear and compelling evidence.

[31] Michelle has suggested that she intends to punish Sepideh at all costs:

Text from Michelle to Sepideh (August 22, 2020): “It’s just the beginning... I don’t need the money. I will spend $1 million to ruin you.”

Email from Michelle to Sepideh (August 15, 2020): “I’m a wealthy woman, the money means nothing. I will sit back and watch while he [Jeffrey] makes you suffer.”

[32] The extent, volume and nature of the posts are such that there is no question that Sepideh will suffer irreparable harm if the injunction is not granted. Her reputation is being harmed by these relentless posts. The fact that the internet is being used as the medium to widely disseminate these posts is another important factor. As stated by Blair J.A. in Barrick Gold Corp. v. Lopehandia 2004 CanLII 12938 (ON CA), 71 O.R. (3d) 416 (Ont C.A.):

[30] In the Internet context, these factors must be examined in the light of what one judge has characterized as the "ubiquity, universality and utility" of that medium. In Dow Jones & Company Inc. v. Gutnick, [2002] H.C.A. 56(10 December 2002), that same judge - Kirby J., of the High Court of Australia — portrayed the Internet in these terms, at para. 80:

The Internet is essentially a decentralized, self-maintained telecommunications network. It is made up of inter-linking small networks from all parts of the world. It is ubiquitous, borderless, global and ambient in its nature. Hence the term "cyberspace". This is a word that recognizes that the interrelationships created by the Internet exist outside conventional geographic boundaries and comprise a single interconnected body of data, potentially amounting to a single body of knowledge. The Internet is accessible in virtually all places on Earth where access can be obtained either by wire connection or by wireless (including satellite) links. Effectively, the only constraint on access to the Internet is possession of the means of securing connection to a telecommunications system and possession of the basic hardware.

[31] ... 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.

[32] 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:

... 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.

[33] The argument by Privé that somehow Sepideh has no reputation to protect is also meritless. Everyone has a reputation. Privé also attempted to equate money and success with reputation, which I categorically reject. Privé further alleged that Sepideh did not have a good reputation in the luxury merchandise industry in Toronto. Even if true, this again does not mean that name-calling, threats, and other comments would not cause damage to her current reputation, as it is.

[34] The overwhelming and continuing posts are not through the @priveporter Instagram accounts, but rather new accounts that have been established specifically to harass Sepideh and Ali. I reject the arguments put forward by Privé that there is no irreparable harm shown in respect of the Privé posts. The @priveporter Instagram account has over 120,000 followers. There have been Instagram stories on that account, such as:

a. From the Instagram Story of @priveporter, August 22, 2020: “Winner. We now have Sepideh Moazzani on film admitting all of her crimes! In addition she violated the search and seizure order and will be held in contempt of court and a bench warrant will be issued. Her confession will also be turned over to the police. Videos and her arrest are coming soon! Stay tuned!”

b. From the Instagram Story of @priveporter, August 14, 2020: “This is her mother Cathy Lavassani who blocked me as well. Also part of the scam I’m sure.”

c. From the Instagram Story of @priveporter, August 14, 2020: “This is her boyfriend [Ali] who pretends to be a prince and wealthy owner of an oil company.”

d. From the Instagram Story of @priveporter, August 14, 2020: “If you’re following the story about the $2M Iranian scammer from Toronto things are heating up fast! Follow @princeofdublie for the latest! Big news coming this week!!!”

[35] The last noted Instagram Story above directs the significant following of @priveporter to follow @princeofdublie. This is one of the many Instagram accounts that has been created to harass Sepideh and Ali. The @princeofdublie account, in turn, posted a story directing followers to another of the Instagram accounts that has been created, @scampatroller:

“The other day I posted a warning about a woman from Toronto who has scammed me and other victims out of millions of dollars! I’d like to thank @scampatroller for helping to keep this story alive to help others avoid a similar fate while the news media and @RCMPOntario investigate! Follow @scampatroller and share this story…”

[36] When the @priveporter site directs its followers to the @princeofdublie account – “If you’re following the story about the $2M Iranian scammer from Toronto…Follow @princeofdublie for the latest! Big news coming this week!!!”, it is, in effect, endorsing @princeofdublie to its over 120,000 followers.

[37] Counsel for Privé argued that because many of the Instagram postings on @priveporter appeared as an Instagram Story, they should somehow be given less weight. Instagram posts are ones that stay up until the Instagram user (the “User”) who posted them decides to remove them. These can be contrasted with Instagram Stories, which appear as circles at the top of the User’s Instagram page and show up for 24 hours. The Stories then go into the User’s archive, at which time the User can still access them, but no one else can. If a person follows the User, then the Instagram Story posted by the User appears for 24 hours at the top of the follower’s feed in a circle, which can be clicked on and accessed. In this way, the Instagram Story is circulated among the User’s followers. It is also possible to highlight Instagram Stories, in which case they remain on the User’s profile. There was no evidence before the Court as to whether any of the @priveporter Instagram Stories related to Sepideh or Ali have been highlighted. I further note that screen shots can be taken of Instagram Stories and disseminated widely. Given the broad potential reach of an Instagram Story, in my view they should not be discounted as less important in this analysis. Just because an Instagram Story is ostensibly temporary does not mean that it can’t have a lasting impact. Instagram Stories are still publications.

[38] I accept the submission of the defendants that Instagram Stories are now a prevalent medium of communication. I also accept the defendants’ submission that just because something exists for a day does not diminish its potential reputational harm. Technology and it uses continue to evolve and this must be recognized.

[39] The balance of convenience favours the defendants’ request for injunctive relief. The harm to Sepideh is significant and the restriction on Michelle’s behavior by an order for injunctive relief is not a serious imposition on her. There is evidence before the Court of death threats being levied against Sepideh by Michelle, and threats that Michelle will financially ruin Sepideh:

a. From an email from Michelle to Sepideh, August 15, 2020 with the Subject “You’re going to wish you were dead” - “You won’t be laughing when you go to jail Sepideh. Things are about to get very bad for you very fast… Your days are numbered. I’m a wealthy woman, the money means nothing. I will sit back and watch while he [Jeffrey] makes you suffer…You’re just a poor pathetic gypsy. I’m an actual gangster. I’ve hired four Mossad agents who dealt with other problems for me in the past just to be extra sure you both get what you deserve. (…) You’re going to be piss poor crying again in another bankruptcy court. I’m going to make this such a famous story the whole world will recognize your fat ugly fucking face you fucking pig. With everything you know about me you think I was going to lay down and take it like a chump? You’re going to wish you sent me back my money when I asked. Better yet bitch you’re going to wish you were dead. I guarantee it fatty!”

b. Text message from Michelle to Sepideh, August 22, 2020 – “You’re a dead woman walking.”

c. Text message from Michelle to Sepideh, August 22, 2020 – “Your life is over. you fat fucking bitch. The worst is yet to come.”

d. Text message from Michelle to Sepideh, August 22, 2020 – “It’s just the beginning ... I don’t need the money. I will spend $1 million to ruin you. Now that you’re in contempt of court there will be a bench warrant issued for your arrest on Monday. I’ve got detectives at every entrance of the building, and at Ali’s parents house, you’re being followed everywhere”.

[40] I am satisfied that the factors set out in the RJR Test have been met and that the order to restrain Jeffrey, Michelle and Privé from contacting or communicating with Sepideh, Ali or their immediate families and to restrain them, other than by lawful authority or Court Order, from coming within one thousand (1000) metres of Sepideh’s residence, Ali’s residence, Ali’s parents’ residence or Sepideh’s mother’s residence should be granted.

Injunction re Defamation

[41] I next address whether an interim injunction should be granted in relation to the publication of certain statements, images and information on various Instagram accounts. I note that there is one account (@priveporter) that is affiliated with the corporation Privé; however, there are multiple other accounts that have appeared since just prior to the commencement of these proceedings. The most recent of such accounts appeared on or about September 18, 2020. The frequency of the posts and stories on various accounts, including the @princeofdublie account, is evident from the evidence before me.

[42] The jurisprudence is clear that injunctions in defamation cases “should only be granted in the rarest and clearest of cases, and where the words are so clearly defamatory and impossible to justify that the claim would almost certainly succeed” (Fortress Real Developments Inc. v. Franklin, 2018 ONSC 296, at paragraph 15).

[43] The RJR Test does not apply to motions for injunctive relief in the defamation context, as the RJR Test does not adequately address freedom of speech. The more stringent test for an injunction in the defamation context is set out in Bagwalla v. Ronin et al. 2017 ONSC 6693 (Ont. Div Ct.) at para. 19:

a. The publication complained of must be clearly defamatory;

b. If the Defendant states an intention to justify or to rely on fair comment, the injunction must be refused unless it is clear that any such defence will inevitably fail; and

c. The Plaintiff must establish irreparable harm if the injunction is refused.

[44] With defamation matters, the bar for an injunction is appropriately higher, as an injunction imposes a restraint on speech. In Canada (Human Rights Commission) v. Canadian Liberty Net 1998 CanLII 818 (SCC), [1998] 1 S.C.R. 626 at para. 49, the Supreme Court of Canada considered the circumstances under which it is appropriate to grant an injunction for defamation and stated:

In Rapp v. McClelland & Steward Ltd. (1981), 1981 CanLII 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 general et professionnel (CEGEP) de Jonquière, 1997 CanLII 1001 (QC CA), [1997] R.J.Q. 2395. Rothman J.A., on this point speaking on behalf of Deslisle 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.

[45] It is also important to point out that while there is a very strong public interest in protecting speech, there may be reduced public interest in protecting speech that contains, inter alia, personal attacks and vitriol. In Levant v. Day 2019 ONCA 244, the Court stated (at paragraphs 22 and 23):

On the other side of the balance, the quality of the expression and the motivation of the appellant are relevant to the measure of the public interest in protecting his expression: Pointes Protection Association, at para. 94. This court in Pointes Protection Association, at para. 94, held that “deliberate falsehoods, gratuitous personal attacks or vulgar and offensive language”, all part of the expression here, may reduce the public interest in protecting that speech, compared to cases where the message is delivered “without the lies, vitriol, and obscenities.”

This is not to say that resort to some vulgar language will necessarily deprive expression of value worth protecting. However here the tweets posted are imbued with hyperbole and vulgar vitriol, and admittedly false in many respects such that there is little value in protecting their expression.

[46] In their factum, for the sake of this motion, and without prejudice to any other position it may take in the lawsuit, Privé concedes that “the statements made are capable of giving rise to a defamatory innuendo”.

[47] As set out in the seminal case of Grant v. Torstar Corp., 2009 SCC 61, in order for a publication to be defamatory, a plaintiff must show:

“(1) That the impugned words were defamatory, in the sense that they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person;

(2) That the words in fact referred to the plaintiff; and

(3) That the words were published, meaning that they were communicated to at least one person other than the plaintiff.”

[48] In Grant v. Torstar Corp., the Supreme Court goes on to state (at para. 28) that “[i]f these elements are established on a balance of probabilities, falsity and damage are presumed…” and that “[t]he plaintiff is not required to show that the defendant intended to do harm, or even that the defendant was careless. The tort is thus one of strict liability.”

[49] Among the statements in evidence from the various Instagram accounts, there are countless examples that are prima facie defamatory in nature, including inaccurate and misleading statements regarding the ongoing Court proceedings. Given the specific content of these posts, it is virtually certain that Michelle and/or Jeffrey is behind the @princeofdublie account, and certain other accounts referenced in the materials. I say this because of the extensive commentary in the @princeofdublie account regarding the execution of the ex parte AP Order and Mareva Order, as well as the fact that there is a @princeofdublie Instagram Story with a picture of Michelle and Jeffrey with the caption “Do we look like people you should rob? You’re dumb Sepideh Moazzani.”

[50] The following are a few examples from the ample evidence before the Court:

a. @princeofdublie post with a still image taken from the execution of the AP Order: “In case you’re wondering what the gypsy [pig emoji] looks like without her makeup and filters here’s a screenshot of her video confession. [clown emoji]”

b. @princeofdublie: “I’m posting this because I think it’s funny. We have an emergency hearing next week to have Sepideh Moazzani incarcerated for violating two court orders. This is completely separate from the multiple criminal agencies that are working to also incarcerate her…”

c. @princeofdublie: “Hey Sepideh Moazzani, your gig is up. You’re a liar and a thief. All of the evidence, including emergency court orders, is published on this page. Don’t make me post your bank statements and confessional video. I’m saving them for your incarceration hearing next week…”

d. @princeofdublie post: “…I get no joy out of doing this in public until then, but Sepideh Moazzani and Ali Moghtadaei are dangerous sociopaths and they are still at large on the streets...She is not who you think she is. Her entire image is a scam, built on the backs of dozens of victims over 25 years. Sepideh Moazzani is a liar and a thief…”

e. @princeofdublie Instagram Story: “Wow, we got all of Sepideh Moazzani’s bank statements…We also have the video where she admits everything, that she simply stole the money…Ultimately our goal is to put her in jail, and after all of the victims who have come forward, spanning 25 years, from scammed clients to former lovers and friends, it’s clear that this sociopath needs to be off the streets and locked in a cage like the animal that she is…”

f. @princeofdublie Instagram story: “If you have been scammed by Ali Moghtadaei please join the other two dozen victims who have come forward and help us put him and Sepideh Moazzani in jail for good! DM us!”

g. @priveporter Instagram story with a photo of Ali’s Instagram page: “This is her boyfriend who pretends to be a prince and wealthy owner of an oil company.”

h. @princeofdublie post in reference to Sepideh’s former boyfriend who died of an overdose – “…he died from drugs? Or another one she killed? Who knows the real story about this? I’ve been told she gave him drugs to kill him. Does anyone know his name? His family? Did Sepideh Moazzani kill him?”

[51] As set out above, there is an action that has been launched by the plaintiff; however, there has yet to be a civil trial on the merits. There is no evidence of Sepideh or Ali being “dangerous sociopaths” or scamming victims over 25 years. Also, it is unquestionably defamatory to suggest that Sepideh killed her former boyfriend.

[52] On the balance of probabilities, viewed objectively the numerous Instagram posts and stories are defamatory in that they would tend to lower Sepideh’s or Ali’s reputation in the eyes of a reasonable person.

[53] For the second element of defamation test, there is no doubt that the words in the posts and stories refer to Sepideh and/or Ali.

[54] I am also of the view that there is no question that the words were published – they were broadly disseminated on the internet. Whether they were on an Instagram Story or an Instagram post, they were published. In my view, there was also publishing by the plaintiff of at least some of the @princeofdublie material. In this regard, I note the Supreme Court of Canada decision in the matter of Crookes v. Wikimedia Foundation Inc., 2011 SCC 47. In that case, Abella J., for the majority of the Court, concluded (at para. 42) that “[o]nly when a hyperlinker presents content from the hyperlinked material in a way that actually repeats the defamatory content, should that content be considered to be ‘published’ by the hyperlinker.” However, in their concurring reasons, McLachlin C.J.C. and Fish J. propose a different view of the test regarding hyperlinks. They state (at para. 48):

“In our view, the combined text and hyperlink may amount to publication of defamatory material in the hyperlink in some circumstances. Publication of a defamatory statement via a hyperlink should be found if the text indicates adoption or endorsement of the content of the hyperlinked text. If the text communicates agreement with the content linked to, then the hyperlinker should be liable for the defamatory content. The defendant must adopt or endorse the defamatory words or material; a mere general reference to a web site is not enough. Thus, defendants linking approvingly to an innocent web site that later becomes defamatory would not be liable.”

[55] As noted above the August 14, 2020 Instagram Story of @priveporter included the following statement: “If you’re following the story about the $2M Iranian scammer from Toronto things are heating up fast! Follow @princeofdublie for the latest! Big news coming this week!!!” This a circumstance where Privé is endorsing the content of the @princeofdublie account. Although it is not a hyperlink, based on the wording of the story, plus the illustrations in the story, on balance it is an endorsement sending Privé’s many followers to the other account.

[56] Michelle and Jeffrey chose not to respond to the motion. There is no indication that they intend to rely on a defence of fair comment or justification.

[57] Privé has indicated that it intends to plead justification – i.e., the defence of substantial truth - and therefore the motion for injunctive relief in respect of Privé must be refused unless it is clear that any such defence will inevitably fail. Jeffrey Berk’s affidavit, dated September 18, 2020 (the “Berk Affidavit”) filed by the plaintiff on this motion is focused on Privé’s cross motion, which, as noted above was not scheduled to be heard at the same time as the defendants’ motion. Although the Berk Affidavit addressed certain text and WhatsApp communications between Michelle and Sepideh for completeness, it did not address the @priveporter Instagram posts or stories other than stating that in the full trial of this matter they anticipate being able to show that the statements Privé made about Sepideh were true. The plaintiff did not put forward evidence to justify the posts/stories.

[58] As indicated above, there are @priveporter posts that on their face are problematic. Most notably, there is the Instagram Story directed at Sepideh’s mother, who is not a party to this proceeding - “This is her mother Cathy Lavassani who blocked me as well. Also part of the scam I’m sure.” There is no evidence or allegation that Sepideh’s mother has had any involvement in the dealings between Privé and Sepideh. However, this post would be defamatory to Sepideh’s mother, not Sepideh or Ali. Another example is the @priveporter Instagram Story that refers followers to @princeofdublie and states: “If you’re following the story about the $2M Iranian scammer from Toronto things are heating up fast!” The allegations in the statement of claim relate to a failed transaction with a value estimated by the plaintiff of $194,500 USD, not $2 million. Another example is from @priveporter Instagram story (August 22, 2020): “We now have Sepideh Moazzani on film admitting all of her crimes! In addition she violated the search and seizure order and will be held in contempt of court and a bench warrant will be issued. Her confession will also be turned over to the police. Videos and her arrest are coming soon! Stay tuned!”

[59] Even if I accepted the plaintiff’s position in their factum that certain of the @priveporter posts may be defensible based on their stated intention to justify, I am satisfied that there are no defenses in respect of the statement noted above about Sepideh’s mother, and the Instagram story that directs @priveporter followers to @princeofdublie thereby endorsing the numerous defamatory posts on that site. In addition, there is no evidence to support the @priveporter story stating that Sepideh admitted all her crimes on film and that there will be a bench warrant issued and she will be arrested. I am satisfied that these posts are defamatory and cannot be justified.

[60] There was also mention of the defence of fair comment. Again, there is no evidence put forward by the plaintiff to support this. In any event, it is clear from the jurisprudence that where there is express malice, as in this case, the defence can be defeated (Simpson v. Mair, 2008 SCC 40).

[61] I have already extensively canvassed the issue of irreparable harm above. My analysis applies equally to the injunctive relief requested regarding the defamation. I am satisfied that Sepideh and Ali will suffer irreparable harm if these posts continue.

[62] Given the frequency of the posts and stories on the various accounts, including the recent creation of a new account (@princeofdublies), there is a very high likelihood of repetition.

[63] Accordingly, I am also satisfied that an Order restraining the plaintiff, Michelle and Jeffrey from publishing any further defamatory words or images, including defamatory words concerning the ongoing litigation, should be granted. In making this decision, I note that injunctions to restrain alleged defamation should only be granted in the rarest and clearest of cases. In my view, this is one of such cases.

[64] These interim injunctions will expire on November 6, 2020 at 11:59 p.m. The parties are back before the Court on November 3 and 6, 2020 for the return of the Mareva Order and AP Order and the hearing of the security for costs motion.

Implied Undertaking Rule

[65] As set out above, the Defendants are requesting that the injunction extend to information, images, and documents obtained from Sepideh and third parties under the compulsion of the AP Order and the Mareva Order. There have already been images posted on the @princeofdublie Instagram account of Sepideh taken inside her home from the date of the execution of the AP Order, as well as excerpts from the Mareva Order. There have also been threats made to release Sepideh’s bank statements and asset affidavit obtained pursuant to the Mareva Order.

[66] I am particularly troubled by the use of Orders granted on an ex parte basis by this Court to perpetuate the harassment of Sepideh. The processes of the Court should not be abused. The defendants reference the common law implied undertaking rule, which requires that a party that has received information under compulsion of a Court order or during discovery is deemed to give the Court an undertaking that the information will not be used for any collateral or ulterior purpose unrelated to the litigation. In this regard, the Federal Court in Merck & Co. v. Apotex Inc. 1996 CanLII 4019 (FC), [1996] 2 F.C. 223 stated (at pp. 20-21):

In my opinion, if an undertaking is implied in regard to information produced in discovery, as is now recognized, the same may surely be said of information received by one party from another under compulsion of the court’s order. The implied undertaking may be enforced by a court order to restrain release of information in collateral proceedings or activities (…). The breach of the implied undertaking may constitute contempt of court (…).

The limits of that undertaking are that the information not be used for a collateral or ulterior purpose. That means for any purpose other than those concerned with the proceedings in which the information is produced (…). [citations omitted]

[67] I agree with the defendants that the statutory rule under Rule 30.1 of the Rules of Civil Procedure and its exceptions are not an answer and do not apply to the evidence obtained under the AP Order or the Mareva Order.

[68] As indicated in Merck & Co. v. Apotex Inc., a breach of the implied undertaking rule can be remedied by Court Order restraining the release of information in collateral proceedings or activities. In the circumstances, I am satisfied that such an Order is required.

Undertakings as to Damages and Clean Hands

[69] The plaintiff asserted that injunctive relief should not be granted as Ali had not made a personal undertaking as to damages. Subsequently Ali swore an affidavit (September 22, 2020) in which he agreed and undertook to personally pay any damages caused by the injunction, if it ought not to have been granted.

[70] The plaintiff also argued that the defendants do not have clean hands and should be not be entitled to an equitable remedy. In Sherwood Dash Inc. v. Woodview Products Inc., [2005] O.J. No. 5298 (Ont. S.C.), Perell J. discussed this equitable principle (at paragraphs 51 and 52):

[51] 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.”

[52] 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…”

[71] The plaintiff points to the @scamialert account in this regard. Sepideh’s affidavit evidence is that she is not the owner, creator, or operator of the @scamialert Instagram account. Sepideh’s affidavit evidence (September 21, 2020) is that the account “was created by a third party and a stranger to the within litigation. The individual – like many of our friends, family and followers – was outraged by Michelle’s defamation and harassment of myself and Ali, and took matters into their own hands.” As set out in the Berk Affidavit, the plaintiff believes that Sepideh and Ali are the creators and operators of this account primarily because they both follow the account and have liked the account’s posts. Given the evidence before the Court, on balance I am satisfied that Sepideh and Ali should not be precluded from the equitable relief of an interim injunction due to the “clean hands” maxim.

Removal of Existing Posts

[72] As set out above, Sepideh and Ali have also requested an order that the defendants to the counterclaim delete or otherwise remove all words and images concerning Sepideh and Ali published by the defendants to the counterclaim on the internet and social media. Further, Sepideh and Ali have requested an order that the defendants to the counterclaim delete or otherwise remove all words, images and information which might tend to identify Sepideh and Ali published by the defendants to the counterclaim, which are derived from the execution of the AP Order and/or in compliance with the Mareva Order.

[73] The evidence with regard to the @priveporter posts is that they were Instagram stories. Accordingly, they would have expired after 24 hours.

[74] There are posts (as opposed to stories) on certain other accounts that have been established, such as the @princeofdublie Instagram account. Sepideh’s affidavit evidence is that publications have been made via “various ‘fake’ or unofficial accounts which [she verily believes] Michelle created for the purpose of defaming and harassing [her], such as @princeofdublie; @sepidehthesnake; @scampatroller; @issheabitch; and @lollipopswim.” There is no affidavit evidence from Michelle and the Berk Affidavit did not address these other accounts. These posts should be removed or deleted.

Disposition and Costs

[75] For the reasons set out above, Order made in accordance with the attached.

[76] The parties may deliver written submissions on costs (not to exceed 5 pages each, double spaced) together with their costs outline to my judicial assistant. The defendant may deliver theirs by no later than the close of business on October 14, 2020 and the plaintiff, Michelle and Jeffrey will have 10 business days to respond. My costs decision will be released in due course once I have considered these additional submissions.

J. Steele J.

Date: September 30, 2020