COURT FILE NO.: CV-20-83769
DATE: 2021/10/07
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
SHANIA LAVALLEE
– and –
JUSTINE LAVALLEE
Plaintiffs
– and –
SOLIT ISAK
Defendant
Charles R. Daoust, for the Plaintiffs
Cedric Y.L. Nahum, for the Defendant
HEARD: July 16, 2021 by video conferencing
REASONS FOR DECISION
M. Smith J
[1] On May 30, 2020, Justine Lavallee, Shania Lavallee, and Gilmour Driscoll-Maurice (Shania’s boyfriend) were play fighting. Shania took a short video (15-20 seconds in length) of Justine and Gilmour wrestling and horsing around (the “Video”). Shania posted the Video to Snapchat and shared it with a select group of her friends on Snapchat.
[2] Unbeknownst to Shania, one of her followers took a screenshot of one scene in the Video and shared it with her own followers. The screenshot depicted Justine face down on the ground with Gilmour on top of her. He was holding Justine’s hands behind her back and his knee was in the middle of her back (the “Screenshot”).
[3] Solit Isak received a copy of this Screenshot and shared it with her own followers, denouncing the actions of Justine, Shania, and Gilmour, as racist. Solit was of the view that they were not simply play fighting. Solit accused them of mocking George Floyd’s death.
[4] Solit invited her followers on Instagram and Twitter to join her in identifying and denouncing the behaviour of Justine, Shania, and Gilmour.
[5] Prior to Solit’s first post on her social media accounts, the parties did not know each other, nor had they ever communicated with one another.
[6] Solit’s online campaign against Justine, Shania, and Gilmour was successful. Justine was summarily fired from her job with the Canada Border Services Agency (“CBSA”) and she was unable to secure employment with the government or the Royal Canadian Mounted Police (“RCMP”). Shania was fired from her waitressing job at Boston Pizza. Shania was investigated by the Ontario College of Teachers. The Ottawa Catholic School Board (“OCSB”) rescinded their offer of employment. The Plaintiffs’ home was vandalized, their neighbour’s car seriously damaged, and their friends and family were subjected to death threats and harassing phone calls and social media messages.
[7] In response to the unexpected viral and intense backlash that the Screenshot caused, Shania posted the following apology: “To anyone who saw my post, I meant absolutely no disrespect and didn’t mean to hurt or offend anyone. In the video, they were play fighting as they always do and in retrospect I can see how the video could be taken out of context given the current situation and I now see how insensitive it is. It was wrong of me to be inconsiderate of the sensitive times at hand and by no means did I use this as a representation of what happened with George Floyd. I in no way support that sort of action against anyone and I sincerely apologize for my oversight and insensitivity to the matter, especially with the state of the world right now. I completely understand the frustration and the anger towards me and there are no excuses for my actions. I am so sorry to anyone who has been hurt or affected in any way through my post as this is not a reflection of who I am as a person.”
[8] Justine and Shania say that their lives were ruined overnight because of Solit’s actions. Their reputations have been annihilated and they suffered deep humiliation and shame, as well as severe terror and anxiety.
[9] Solit responds that any damages that may have been suffered by Justine and Shania are attributable to their own inappropriate actions and their clear lack of judgment.
[10] Justine and Shania bring an action against Solit in defamation for her social media publications. They say that a trial is not necessary and that it can be summarily decided by way of a Motion for summary judgment.
[11] Justine and Shania both filed affidavits in support of their Motion. In addition, they filed three affidavits: one from their mother, Colinda Lavallee, and two from friends that viewed the Video in question, namely Joey Martello and Jordan Scott-Holmes.
[12] Solit chose not to examine or cross-examine Justine, Shania, or the three additional witnesses. Their evidence remains unchallenged. Solit filed an affidavit and she was examined by counsel for Justine and Shania during an examination for discovery.
[13] The issues that I need to determine are:
a. Is this an appropriate case for summary judgment?
b. Is Solit liable for defamation?
c. If Solit is liable for defamation, are Justine and Shania entitled to general damages, aggravated damages, punitive damages, a retraction, and/or an apology?
[14] For reasons that follow, I am satisfied that it is appropriate to grant summary judgment. Justine and Shania are each awarded $50,000.00 in general damages, plus interest and costs.
ISSUES
Issue one: Is this an appropriate case for summary judgment?
[15] In my view, this is an appropriate case for summary judgment because there are no materials facts in dispute.
Legal Principles
[16] Rule 20.04(2)(a) of the Rules of Civil Procedure R.R.O. 1990, Reg. 194 provides that the Court shall grant summary judgment if it is satisfied that there are no genuine issues for trial.
[17] There will be no genuine issue for trial when the judge is able to reach a fair and just adjudication. It is achieved when the process allows the judge to make the necessary findings, apply the law to the facts, and the process is a more proportionate, more expeditious and less expensive means to achieve a just result: Hryniak v. Mauldin, 2014 SCC 7 at para. 49.
[18] The onus to establish the absence of a genuine issue rests on the moving party. However, the responding party also has an evidentiary burden, often referred to as “lead[ing] trump or risk losing”. The responding party cannot merely rest on the allegations or denials in the pleadings but must present evidence demonstrating that there are genuine issues for trial: Columbos v. Columbos, 2014 ONSC 1342, at para. 10.
[19] Summary judgment is available in a defamation action: Vivo Canadian Inc. v. Geo TV, 2021 ONSC 3402, at para. 11.
[20] In an action for defamation, the plaintiff must prove three elements: (a) that the words refer to the plaintiff; (b) that the words have been published to a third party; and (c) that the words complained about are defamatory to the plaintiff in that they tend to lower the plaintiff’s reputation in the eyes of a reasonable person. If these three things are proven on a balance of probabilities, falsity and damages are presumed. The onus then shifts to the defendant to advance a defence to escape liability: Grant v. Torstar, 2009 SCC 61, at paras. 28-29.
Analysis
[21] Solit does not challenge the appropriateness of resolving this matter through summary judgment. As noted below, it is not disputed that: (i) Solit is the author of the social media posts, (ii) that Solit published the posts on Instagram and Twitter, and (iii) that Solit republished comments and statements made by her followers. There are no issues of credibility that require a trial. On the record before me, I can determine if Solit’s social media posts are defamatory and whether she has made out a valid defence to the publication of these posts.
Element #1 – the words refer to Justine and Shania
[22] Solit admits being the author of the words written on her Instagram and Twitter accounts. There is no question that the words are about Justine and Shania.
Element #2 – the words have been published to a third party
[23] Solit admits sharing her posts to her third-party followers on Instagram and Twitter accounts.
Element #3 – the words complained of are defamatory to Justine and Shania because they tend to lower their reputations in the eyes of a reasonable person
[24] The words complained of by Justine and Shania are those found on Solit’s Instagram and Twitter accounts. Solit says that all the information that has been posted on her social media accounts is appropriate and neutral.
[25] Solit’s posts and re-posts on Instagram include:
a. “solitisak PLEASE EMAIL @uottawa WE CANNOT HAVE “TEACHERS” LIKE THEM. IM SO DISGUTED. I still don’t have any names of the people in the pics. @uottawa @uottawa @uottawa.”
b. “So Shania is behind one of the videos & in school to become a teacher. Y’all really want her teaching our black babies? Email the @uottawa.”
c. “I don’t have any of the guys social media @’s. Only shanias boyfriends. Facebook – that is already posted.”
d. “@gilmourd8 I HOPE YOU ARE PREPARED.”
e. “Don’t be shy, attack some more. YOU AND YOUR GIRLFRIEND MAKE A VERY UGLY COUPLE. LETS GET HIM TOO GUYS.”
f. “You can message the company he works for, let them know his true colors.”
g. “Period. Ppl really think they gonna get away with racism.”
h. “Nah like fr she’s not getting away with an Apology. She knew what the fuck she did. She’s not becoming a teacher I don’t fucking care. Email the school.”
i. Solit publishes Shania’s email address and telephone number. She writes: “Shania Lavallee – Shine with Shan. Quit playing behind that screen. Fuck ur buisness"
j. “Damn so she been ugly ugly.”
k. “This is so embarrassing I’d cry myself to sleep. Disgusting. You deserve to rot in hell.”
l. “Shania had already graduated from uottawa and she just recently gotten a job offer from @ottcatholicsb.”
m. “solitisak @ottcatholicsb SHE CANNOT BE TEACHING OUR YOUNGER BLACK BROTHERS AND SISTERS , SONS AND D…”
n. “…I am messaging you in regards to shania lavallee. I do not condone racism and reenacting someone death. This is unacceptable. Please if you as a catholic organization let her become a teacher. I am not letting my kids got to any Ottawa catholic school board. This really breaks my heart that you guys might give her a chance. I am a black girl so yes this hurts. I am just letting you know in advance my kids won’t be going to any Ottawa catholic school boards if you accept her…APPLY PRESSURE.”
o. “We are almost there guys!!! TAG @ottcatholicsb in the recent post. DM THEM!! Let them know you refuse to have her in the same room as our black youth.”
p. “I am really trying my best to get back to everyone as fast as I can – 100% EVERYONE will be answered, I am forever grateful. In the meantime please spam @ottcatholicsb.”
q. “Should it be taking this long to take her offer away.”
r. “I’m so fucking upset. How does it take so long. She got fired in LESS THAN 3 HOURS. Disappoitned af @ottcatholicsb.”
s. “I swear to God if they find an excuse to keep her…”
t. “Please spam on their recent post.”
u. “OCSB is taking their sweet fkn time terminating Shania’s employment. Please share the email address of the OCSB Director of Education to report Shania’s disgusting behaviour!!”
v. “I finally understand now why the OCSB is taking their sweet time investigating on the screenshot. The whole system is racist. We all been knew this. Now we just see more proof.”
w. “It hurts a lot more coming from Natives – we are supposed to work together, you face systemic racism here in Canada as well.”
x. “solitisak @bostonpizzaorleans is invited to the cookout. Shania is terminated from her job.”
y. “Wow thank you guys so much for having my back waiting for their response.”
z. “She works for @canborder.”
aa. “Answering dms now. Please continue sending emails, tagging @canborder, Messaging the ott catholic school board, sharing with friends, speaking abt it, etc.”
bb. “solitisak I had to take a breather, look at what she’s studying you have got to be kidding me. So the whole family is racist. Ok. @justinelavallee Ofc she deleted her Instagram. She’s the girl in the blue hoodie on the ground (in the picture that Shania took).”
cc. “Please submit the video of Justine and her fam. She cannot do anything without the video.”
dd. “K, K & K.”
ee. “To make a difference you HAVE to take action. Please take some time out of your day for George Floyd.”
ff. “HERE ARE 2 ARTICLES about Shania & Justine in regards to their snapshot video mocking George Floyd’s murder. We did that in 2 days!! LINK IN BIO.”
[26] Solit’s publications on Twitter include:
a. “IM EXPOSING RASCIST PEOPLE IN OTTAWA!! Tune in @solitisak on IG.”
b. “We are calling for action, we are so close please share we cannot and will not have a racist as a teacher here in my city. Please take 5 min of your time to take action and get her license taken away.”
c. “UPDATE* JUSTINE LAVALLEE JUST GOT FIRED FROM @CanBorder.”
[27] Solit argues that her posts cannot be defamatory “in the sense that they would tend to lower plaintiff’s reputation in the eyes of a reasonable person because a reasonable person who is reasonably informed would understand how that the words spoken by the defendant were reflective of the context of the Screenshot of the video posted by the plaintiff”.
[28] I disagree. Solit accuses Justine and Shania of being racists and mocking the tragic death of George Floyd. Solit’s posts are serious accusations of improper conduct. One of her post’s associates Justine and Shania to the Klu Klux Klan. Solit’s statements have engendered feelings of hatred, contempt, dislike, and hostility towards Justine and Shania.
[29] A reasonable person reading Solit’s social media posts will easily tend to lower Justine and Shania’s reputation. Each of Solit’s posts are brief, but taken as a whole, the reasonable person would think and conclude that Justine and Shania are racists.
[30] I find that Justine and Shania have proven, on a balance of probabilities, that Solit’s words are defamatory. The three elements of defamation have been established.
Issue two: Is Solit liable for defamation
[31] The tort of defamation is one of strict liability. Once Justine and Shania have proven the three elements of defamation, which they have, it is up to Solit to advance a valid defence to escape liability.
[32] Solit relies on the defences of justification and fair comment. In my opinion, Solit has failed to prove a valid defence. She is therefore liable for defamation.
Legal Principles
[33] A defendant is required to plead the particulars of their defences: Paramount Fine Foods v. Johnston, 2019 ONSC 2910, at para. 56.
[34] To succeed on a defence of justification, a defendant is required to adduce evidence showing that the statement was substantially true. The burden is on the defendant to prove substantial truth of the “sting” or main thrust, of the defamation: Bent v. Platnick, 2020 SCC 23, 449 D.L.R. (4th) 45, at paras. 107-108.
[35] For a defendant to rely on the defence of fair comment, they must satisfy the following test: (a) the comment must be on a matter of public interest; (b) the comment must be based on fact; (c) the comment, although it may include references of fact, must be recognizable as comment; (d) the comment must satisfy the following objective test: could any person honestly express the opinion of the defendant on the proved facts; and (e) even if the comment satisfies the objective test, the defence can be defeated if the plaintiff proves that the defendant was actuated by express malice: Grant, at para. 31.
Analysis
[36] Solit’s Statement of Defence does not provide many particulars or facts. She relies upon Shania’s apology as an admission of guilt as well as the Video, which she has never seen. Solit pleads the Video shows insensitive content that directly or indirectly mocks George Floyd’s tragic death. That is the extent of Solit’s factual foundation, as pleaded in her Statement of Defence.
[37] Solit filed a short affidavit in response to the Motion for summary judgment. She adopts the statements made in her Statement of Defence and her evidence given at the examination for discovery that took place on December 11, 2020.
[38] Solit’s affidavit is not helpful because it provides no evidence supporting her defences that the statements were substantially true. That leaves her evidence adduced at the examination for discovery.
[39] Solit testified that she found out about the Screenshot from one of her followers named Isha. She does not recall if Isha saw the Video.
[40] Before sharing the Screenshot, Solit thought about it quickly and posted it. She testified that she attempted to get a copy of the Video. She was unsuccessful. She never saw the Video. She testified that she spoke to a few people who viewed the Video but only one of them reported that the words “police brutality” were said in the Video. Solit does not remember this person’s name or handle.
[41] Solit acknowledged at her examination for discovery that it is important to have evidence before making accusations. Solit’s admission is found at question 177 of the transcript of her examination for discovery:
- Q. Okay. Ms. Isak, I’d like to ask you more of a general question, and I would like you to answer truthfully as you can. Would you agree with me that it’s important to have evidence before levelling serious accusations, accusations such as racism or mocking the death of a man? Would you say that it’s really important to have evidence to prove that?
A. Yes.
[42] Solit confirmed in her testimony that, at no time, did she ever attempt to contact Shania to get her side of the story and find out about the play fighting that is seen in the Video. In fact, it never occurred to Solit to make that inquiry (questions 234 to 237 of the transcript):
- Q. Okay. And so never – it never occurred to you that perhaps you were in error and that perhaps there had been a misunderstanding and perhaps you could find a solution or perhaps reach out to my clients to see if there could be some understanding as to what actually transpired?
A. No.
- Q. It never occurred to you to reach out to them?
A. No.
- Q. So it never occurred to you to verify the actual content of the video?
A. No.
- Q. Ms. Isak, would you agree with me that it’s important to always be truthful on social media?
A. Yes.
[43] Although Solit did not see the Video, she stated that it was racist. She explained it as follows (questions 230-232 of the transcript):
- Q. So I want to make sure that I understand. So because of the timing of the video and –
A. Because of the timing, because people were posting and sharing it, because people came forward to me and said that police brutality was said in the video, yeah.
- Q. But, again, there’s only one person that you recall. So on the basis of what other people told you on social media, you posted over a hundred posts against Shania and Justine Lavalle, correct?
A. Yes.
- Q. And, again, you’ve never met Shania Lavalle or Justine Lavallee?
A. Never met them.
Defence of justification
[44] Solit argues that the Screenshot of the Video is substantially true because: (1) Shania posted a public apology and admitted that the act was wrong and insensitive; and (2) statements and actions taken by multiple organizations including Boston Pizza, the CBSA, and the OCSB, provide evidence that the Screenshot of the Video was an act of racism and extremely insensitive.
[45] I disagree. An apology from Shania or statements from third parties are not evidence proving that the Screenshot was an act of racism.
[46] Shania’s apology was in response to the viral and intense backlash that the Screenshot posed. In her affidavit, she deposes that the allegations were false: (i) they never participated in and shared a Video mocking the tragic death of George Floyd, (ii) they never intended to mock or ridicule the tragic death of George Floyd, (iii) they did not re-enact the events surrounding the tragic death of George Floyd, and (iv) they are not racist or intolerant, particularly as against persons of colour. Shania has always maintained that Solit’s allegations were false. Shania’s apology needs to be put into context and I do not find that it represents an admission of guilt.
[47] Solit claims that because Justine and Shania lost their jobs at Boston Pizza, the CBSA, and the OCSB, the act of racism that she alleged in her posts were true. I reject this argument. While each of these organizations are entitled to have opinions and act upon them, such opinion is not evidence that the alleged act of racism is true, it is simply evidence of an opinion.
[48] Solit did not see the Video and she made no efforts to verify the truth of the Video. She cannot provide any evidence to the Court regarding the content of the Video.
[49] Solit’s claims that a follower heard the words “police brutality” being uttered in the Video is not in evidence. Solit has failed to prove that the words “police brutality” were spoken in the Video.
[50] Although it is not Justine and Shania’s legal burden to prove that the statements are false, they have nonetheless led their own evidence as well as the evidence from Joey and Jordan who saw the Video.
[51] Shania deposes in her affidavit that the Video is one amongst a series of such videos made in the past featuring Justine and Gilmour play fighting and shared on the Snapchat social media platform. She said that the words “police brutality” were not uttered in the Video, nor were there any intended racial connotations or inferences to the tragic death of George Floyd. Shania was unable to retrieve a copy of the Video from Snapchat’s technical service because it is automatically deleted within 24 hours of being shared.
[52] Justine adopts Shania’s statements regarding the content of the Video.
[53] Joey and Jordan have known Shania for several years. They describe Shania as a kind, generous, genuine, and very inclusive person, regardless of gender or race. Jordan specifically mentions that being an Indigenous person herself, Shania has consistently supported movements regarding minority populations, and she has used her social media platforms to spread awareness and positivity.
[54] In addition, two letters of reference from Shania’s teachers were filed. They both wrote glowing letters of recommendation, one of which included this statement: “She has a solid, stable set of core beliefs and lives with an honest, open heart, wanting to help others, and do good in the world.”
[55] Joey and Jordan received a copy of the short Video showing Gilmour and Justine play fighting, as they had seen numerous times in previous videos. Gilmour had been joking around with Justine by poking her with a trash picker while she was trying to sleep. They both confirm that no racial connotations were included or involved throughout. Further, they state that no comments or remarks related to George Floyd, police brutality, and/or racism were spoken in the Video.
[56] I accept Shania, Justine, Joey, and Jordan’s uncontradicted and unchallenged evidence regarding the content of the Video as well as the description of Shania’s unblemished character.
[57] Solit can only rely on the defence of justification if she can prove the truth of the defamatory statements. She has not. Solit’s allegations against Justine and Shania have no basis in fact. Therefore, the defence of justification is not available.
Defence of fair comment
[58] Solit submits that she satisfies the five-part test to being able to rely on the defence of fair comment. I disagree for the following reasons.
[59] First, there is no dispute that the comments made by Solit are a matter of public interest. Justine and Shania concede that commenting on or denouncing racist actions relate to a matter of public interest. The first part of the test is satisfied.
[60] Second, the comment made must be true. Solit argues that the factual basis is clearly stated by the actions of Justine and Shania, in that the Screenshot resembles the brutal killing of George Floyd. Solit says that Shania’s apology coupled with the almost instant virality of the Screenshot shared by Solit is evidence on its own.
[61] Solit’s argument is flawed. There must be the existence of a factual foundation. The Supreme Court of Canada stated as such in the case WIC Radio Ltd. V. Simpson, 2008 SCC 40, [2008] 2 S.C.R. 420, at para. 31: “[i]t is true ‘[t]hat the comment must explicitly or implicitly indicate, at least in general terms, what are the facts on which the comment is being made.’” Without the factual background, the fair comment defence is not available.
[62] Solit was required to sufficiently state the facts so that her readers can make up their own minds on the merits. Solit does not provide any background facts in her statements, not even in general terms. Rather, on unsubstantiated evidence that “police brutality” was said in the Video, she immediately posts the Screenshot and accuses Justine, Shania, and Gilmour of mocking the tragic death of George Floyd.
[63] In my opinion, Solit did not set out the factual foundation that was required. As stated earlier, Shania’s apology must be put into context and I reiterate that it is not an admission of guilt. In terms of the instant virality of the Screenshot, it is my view that the viewers made up their mind on unstated and unknown facts.
[64] Solit’s statements are not based on the truth. The unchallenged evidence before me confirms that the Video depicts Justine and Gilmour play fighting, in the same manner as they had done before. There is no evidence of police brutality in the Video. Also, it is important to consider the uncontradicted evidence regarding Justine and Shania’s excellent reputations. Taken as a whole and put within the context, as described by Justine, Shania, Joey, and Jordan, I am satisfied that the Screenshot cannot reasonably be said to mean that Justine, Shania, and Gilmour engaged in racist acts. The second part of the test is not satisfied.
[65] Third, the test requires that the comment be recognizable as comment. Solit says that her comments are based on her opinion that the Screenshot (and Video itself) was an act of racism.
[66] I question Solit’s submissions. Solit testified that she concluded that Justine and Shania were racists because of the timing of the Video, the posting and sharing of the Screenshot by third parties, and that police brutality was said in the Video. On this basis, Solit starts accusing Justine and Shania of being racists, but not in a manner that expresses an opinion. Her posts are stated as allegations of fact. Take for example these posts: “Period. Ppl really think they gonna get away with racism.”; “…about Shania & Justine in regards to their snapshat Video mocking George Floyd’s murder”; “I do not condone racism and reenacting someone death.”; “It hurts a lot more coming from Natives – we are supposed to work together, you face systemic racism here in Canada as well.”; “IM EXPOSING RACIST PEOPLE IN OTTAWA!!”; “We are calling for action, we are so close please share we cannot and will not have a racist as a teacher here in my city.” These allegations are not recognizable as comment. They are expressions of fact and they were not presented by Solit in a manner that would reasonably indicate that they were statements of opinion. The third part of the test is not satisfied.
[67] Fourth, the comment must satisfy the objective test that any person could honestly express the opinion on the proved facts. Solit argues that “given the evidence, this is obvious”. Again, she refers to countless individuals expressing the same opinion as Solit and that the overwhelming condemnation by these individuals satisfies the requirement. I need not repeat my previous findings regarding these third-party opinions or the lack of proved facts. In the absence of factual foundation, this fourth part of the test is not satisfied.
[68] Fifth, the defence of fair comment can be defeated if Justine and Shania prove that Solit was actuated by express malice. Justine and Shania submit that Solit orchestrated a vicious campaign to have two persons ostracized from the community and terminated from their employment, and to invite others to harass, attack, and bully them in an organized effort to cause them maximum harm. Solit most certainly did most of those things, but I do not believe that she did so with malice. That is not to say that I condone Solit’s actions. Quite to the contrary. I find that Solit acted hastily, used poor judgment, and jumped to conclusions on unsubstantiated evidence.
[69] Malice must be the dominant motive for expressing an opinion. Solit’s dominant motive was not malice. She sees herself as a social media activist fighting racial injustice. Her dominant motive was to denounce racism but it was reckless.
[70] To summarize, Solit’s reliance on the defence of fair comment fails because the defamatory words were neither based on fact nor recognizable comment. Solit has failed to prove the requisite foundational facts.
Issue three: Are Justine and Shania entitled to general damages, aggravated damages, punitive damages, a retraction, and/or an apology?
[71] Justine and Shania have been seriously harmed by Solit’s actions. Solit’s defamatory statements were false. Justine and Shania are entitled to general damages in the total amount of $50,000.00.
[72] As reprehensible as I find Solit’s actions to be, I decline to award aggravated and punitive damages or order that she publish an apology. That said, I find it appropriate to grant a permanent injunction requiring Solit to remove the defamatory posts and refrain from publishing defamatory statements in the future about Justine and Shania.
Legal Principles
[73] General damages in defamation cases are presumed from the very publication of the false statement and are awarded at large, meaning that the plaintiff does not need to demonstrate a loss: Hill v. Church of Scientology, 1995 CanLII 59 (SCC), [1995] 2 S.C.R. 1130 at para. 164.
[74] General damages in defamation cases serve three functions: (i) to console the plaintiff for the distress suffered from the publication of the defamation; (ii) to repair the harm to the plaintiff’s reputation; and (iii) to vindicate the plaintiff’s reputation: Mina Mar Group Inc. v. Divine, 2011 ONSC 1172, at para. 13.
[75] To determine the quantum of general damages, the following factors can be considered: (i) the plaintiff’s position and standing; (ii) the nature and seriousness of the defamatory statements; (iii) the mode and extent of the publication – this factor is particularly significant when the publication is made via the internet; (iv) the absence or refusal to retract the libel or to apologize for it; (v) the conduct and motive of the defendant; (vi) the presence of aggravating or mitigating circumstances: Mina Mar Group Inc., at paras. 11-12.
[76] Aggravated damages may be awarded in defamation cases in circumstances where the defendant’s conduct has been particularly high-handed, malicious, or oppressive, resulting in an increase of the plaintiff’s humiliation and anxiety. To be awarded aggravated damages, the Court must find that the defendant was motivated by actual malice: Hill, at paras. 188-191.
[77] Punitive damages may be awarded in a situation where the defendant’s misconduct is so malicious, oppressive, and high-handed that it offends the Court’s sense of decency: Hill, at paras. 196-199.
[78] The range of damages is based on the unique circumstances of each case and the particular confluence of the six factors mentioned above. Recent awards of general damages range between $50,000.00 to $100,000.00, and aggravated and punitive damages of $10,000.00 to $50,000.00: Hategan v. Farber, 2021 ONSC 874; Duncan v. Buckles, 2020 ONSC 3219.
[79] Retractions and apologies have been ordered as remedies for defamation. Also, the Court can order a defendant to remove offensive content on the internet and that the defendant be restrained from further harassing the plaintiff: Caplan v. Atas, at paras. 221-234.
Analysis
General Damages
[80] Solit’s posts were viewed between 15,000 to 40,000 times. They were widely propagated on the internet as well as in traditional media. Solit would republish, share, and endorse the responses from her followers on her social media accounts.
[81] Solit was relentless in her campaign to have Justine and Shania fired from their positions. She used hurtful and inappropriate language to describe Justine and Shania, calling them “disgusting”, they “deserve to rot in hell” and that they are “K K & K”. She succeeded in getting them fired and what I find troubling is that she appeared to take joy in the demise of other human beings.
[82] Shania was summarily dismissed from her part-time job at Boston Pizza. She had been working at the restaurant, on-and-off, for approximately five years.
[83] Shania was due to start work with the OCSB in the Fall of 2020 as a teacher. She had received rave reviews on her work as a teacher’s assistant and was complimented for her work ethic and stellar reputation. The offer of employment was rescinded.
[84] Shania said that the ordeal has left her in a state of shock. She describes the psychological impact as follows: “I felt helpless as I was beleaguered by outside forces attempting to harm me for something I did not – and would not – do. The words stress and anxiety do not accurately describe what I felt as I was so fiercely but falsely accused.”
[85] Justine was equally targeted by Solit and her followers. They sought, and succeeded, to have Justine dismissed from her job as a casual employee at CBSA. Justine had previously received an offer of permanent employment with the CBSA, but it was revoked. She was supposed to start working as a junior program officer at level FB-02 at a yearly salary of approximately $70,000.00 upon completion of her second language examinations.
[86] Justine undertook the recruitment process to join the RCMP as an agent. However, she was informed that she had failed the “character check”. Given that Justine does not have a criminal record or has ever been subject to any controversy before June 2020, she submits that this is the reason for being refused admission into the RCMP program.
[87] Justine states that because of Solit’s online campaign of harassment and bullying, she was forced to delete her social media accounts for six months. Fearful of being judged, she limits her interactions to family and close friends. Justine explains that the vicious attacks have caused her great near-insurmountable stress. She describes the psychological impact as follows: “Since June 2020, I have been experiencing intense anxiety and have developed symptoms of depression. Because of this, I have been forced to consult a doctor and take medication.”
[88] Solit’s online attacks were not limited to Justine and Shania. Their mother, Colinda Lavallee, was also the victim of these attacks. Attempts were undertaken to ruin her reputation and have her fired from her job as an educational assistant for the OCSB. More disturbing is that Ms. Lavallee’s home address was posted, resulting in her house being egged and a neighbour’s vehicle was vandalized. She also received threats of physical injury and death, forcing her to vacate the home for one week. Ms. Lavallee describes it as a traumatic ordeal for her and the family.
[89] Other personal contact information was posted by Solit, such as phone numbers and email addresses. Although she now recognizes that this was a mistake, I believe that it contributed to the stress endured by Justine and Shania.
[90] Solit has not challenged the evidence of Justine and Shania. Given the severity of Solit’s public attacks and the resulting consequences, I accept Justine and Shania’s evidence regarding the personal and psychological impact that Solit’s defamatory remarks have caused them.
[91] I am satisfied that prior to Solit’s misguided and persistent online campaign against Justine and Shania, they both had good reputations, and were in good standing in the community.
[92] Solit’s use of her social media accounts gave her tremendous power to harm Justine and Shania’s reputations. Not only were her posts viewed up to 40,000 times, but Solit increased her followers from 2,000 to approximately 5,000 people in a matter of days. Justine and Shania’s losses are significant. Solit’s conduct was inappropriate including vicious and relentless attacks on Justine and Shania’s reputations. Solit used a powerful medium to publish her defamatory remarks, she encouraged others to assist in the termination of employment, she posted personal information, she refused to stop posting and she targeted family members.
[93] I therefore conclude that general damages in the amount of $50,000.00 for Justine and $50,000.00 for Shania, are appropriate. I believe that these amounts will serve to console Justine and Shania for the distress, hurt, and humiliation caused by Solit’s actions. Their reputations were harmed, and this award will provide vindication.
Aggravated and Punitive Damages
[94] Although I am tempted to award aggravated and punitive damages, I decline to do so. It is not because Solit’s conduct was not reprehensible. I find that Solit’s actions were inexcusable and that she demonstrated complete disregard for the well-being of another human being. Her attacks were vicious, misplaced and are deserving of punishment. However, based on Solit’s answers to the questions posed at the examination for discovery, I am led to conclude that Solit’s actions were impulsive, naïve, and misguided. She was easily swayed by one person claiming to have heard the words “police brutality” in the Video. She did not verify that this information was true. She did not care at the time. She blindly embarked on a brutal and unempathetic campaign to destroy the lives of two young women, when the evidence clearly establishes that these two women are kind-hearted members of the community with outstanding character.
[95] While raising awareness of racial issues is commendable, Solit had a serious lapse in judgment. She acted without ensuring that the factual foundation was accurate. This could also be said of the third parties. Had they taken the necessary time to review the entirety of the evidence, as I have done, the outcome may well have been very different for Justine, Shania, and Solit.
Retraction and Apology
[96] I am not prepared to order Solit to apologize. Solit has never accepted that Justine and Shania were play fighting and it is unlikely that she ever will. An apology to be published on Solit’s social media accounts would only draw further attention to Justine and Shania, which I don’t believe would be in their interest. Justine and Shania need and deserve closure.
[97] Regarding the request for a permanent injunction, I believe that it is appropriate in the circumstances. It appears that tweets are still pinned and accessible on Solit’s Twitter account. Considering Solit’s aggressive online defamatory campaign and her continued belief that Justine and Shania are racists, I find that there is a likelihood that Solit may continue to publish defamatory statements about Justine and Shania, despite my findings in this decision. Moreover, there is a real possibility that Justine and Shania will not receive any compensation given that Solit is unemployed (as of her examination for discovery in December 2020). I therefore grant Justine and Shania a permanent injunction requiring Solit to take down all social media posts regarding Justine and Shania, within ten days of the date of this decision. Also, Solit is permanently prohibited from publishing any defamatory statements, or encouraging any other person to publish defamatory statements, about Justine and Shania.
CONCLUSION
[98] For the foregoing reasons, I make the following orders:
a. Justine is awarded general damages in the amount of $50,000.00 plus interest.
b. Shania is awarded general damages in the amount of $50,000.00 plus interest.
c. Solit must take down all social media posts regarding Justine and Shania, within ten days of the date of this decision.
d. Solit is permanently prohibited from publishing any defamatory statements, or encouraging any other person to publish defamatory statements, about Justine and Shania.
COSTS
[99] Justine and Shania are entitled to their costs. If the parties are unable to agree on costs, Justine and Shania may make written submissions (not to exceed 3 pages) exclusive of the Bill of Costs and Offers to Settle, within 60 days of the date of this decision. Solit may then make written submissions (not to exceed 3 pages) exclusive of the Bill of Costs and Offers to Settle, within 30 days after receipt of Justine and Shania’s submissions. Justine and Shania may then file a reply (not to exceed 1 page), within ten days thereafter.
M. Smith J
Released: October 7, 2021
COURT FILE NO.: CV-20-83769
DATE: 2021/10/07
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
SHANIA LAVALLEE
– and –
JUSTINE LAVALLEE
Plaintiffs
– and –
SOLIT ISAK
Defendant
REASONS FOR DECISION
Justice Marc Smith
Released: October 7, 2021