Hategan v. Farber, 2021 ONSC 874

Court File and Parties

Court File No.: CV-18-610489 Date: 2021-02-03 Superior Court of Justice - Ontario

Re: Elisa Romero Hategan, Plaintiff And: Elizabeth Moore Frederiksen and Bernie Farber, Defendants

Before: Ferguson J.

Counsel: Mark Donald, for Ms. Hategan Lillianne Cadieux-Shaw, Alexi Wood and Jennifer P. Saville, for Ms. Moore Frederiksen Mark Freiman, for Bernie Farber

Heard: December 9 and 11, 2020

Endorsement on Rule 20 and Rule 21.02(3)(d)

Background

1By statement of claim issued on December 10, 2018, Ms. Hategan commenced an action against Ms. Moore.

2Ms. Moore served a statement of defence and counterclaim on January 8, 2019.

3By a fresh as amended statement of claim issued on April 15, 2019, Ms. Hategan revised her claim and added Mr. Farber as a defendant.

4By a statement of defence dated July 24, 2019, Mr. Farber defended against the fresh as amended statement of claim.

5By a notice of motion dated July 24, 2019, Mr. Farber brought this motion for summary judgment, requesting dismissal of all claims against him under Rules 20 and 21.02(3)(d) of the Rules of Civil Procedure.

6Ms. Moore also brings this motion for summary judgment seeking an order dismissing Ms. Hategan’s claims and granting her counterclaim based in defamation allegations.

7Two prior counsel acted for Ms. Hategan prior to Mr. Donald, who relied on at this motion a prior counsel’s factum and also provided a brief supplementary factum. In addition to their original factums, and in response to the supplementary factum from Mr. Donald, both Ms. Moore and Mr. Freiman provided brief supplementary factums.

Summary Judgment

8The court shall grant summary judgment if satisfied that there is no genuine issue requiring a trial with respect to a claim or defence.¹

9There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment.² This will be the case when the process (i) allows the judge to make the necessary findings of fact; (ii) allows the judge to apply the law to the facts; and (iii) is a proportionate, more expeditious and less expensive means to achieve a just result.³

10On a motion for summary judgment, each party is expected to put its best foot forward. While the onus is on the moving party to demonstrate that there is no genuine issue for trial, the responding party must refute the moving party’s evidence and cannot rely solely on allegations or denials. In this way, the responding party must “lead trump or risk losing”.⁴

11The court is entitled to assume that the parties have respectively advanced their best case and that the record contains all the evidence that the parties will respectively present at trial.⁵ Summary judgment motions are decided by evidence of the facts and by inferences drawn from those facts. They cannot be decided by speculation about the facts.⁶ The responding party may not rely on the prospect of additional evidence that may be tendered at trial, even where that party is self-represented.⁷

12Both Ms. Moore and Mr. Farber submit that these are appropriate summary judgment motions which provide the proportionate, expeditious and less expensive means to provide a just result.

13Ms. Hategan submits that these are not appropriate summary judgment motions on the basis that her claim alleges potentially novel issues, including a new duty of care and a novel advancement of misappropriation/privacy law and that Ms. Moore’s counterclaim requires a trial. I indicated at the hearing of the motion that I would not be making new law and expanding new duties of care. In her original factum Ms. Hategan raised all of the boilerplate objections to summary judgment, including that the factual matrix spans decades, the significant credibility issues which require a trial to untangle, and the unfairness which will result from a summary judgment decision. None of her objections succeed. These are appropriate summary judgment motions.

Mr. Farber’s Position

14On September 19, 2017, Mr. Farber appeared on the television program The Agenda along with Ms. Moore. On that program, Mr. Farber described Ms. Moore and Ms. Hategan as "heroes" in terms of "how they were able to take themselves out, how they were able to work the system, to basically shut down the Heritage Front" (note that the Heritage Front was an extremist white supremist group). Mr. Farber and Ms. Moore subsequently became executive members of the Canadian Anti-Hate Network and have appeared together on the platform at several educational seminars devoted to combatting racism.

15Based on these facts and little, if anything, else capable of constituting factual evidence during the limitations period, Ms. Hategan has brought this action against Mr. Farber. In it, she claims $100,000 in general damages for injurious falsehood, civil conspiracy, wrongful appropriation of personality, unlawful interference with economic interests and negligence, as well as $50,000 in punitive damages and $50,000 in aggravated damages.

16Mr. Farber submits that the evidence adduced by Ms. Hategan is not sufficient to establish that there is a genuine issue requiring a trial with respect to any of the claims against him.

17Ms. Hategan has failed to establish by evidence the necessary elements of the various alleged torts. In particular, Mr. Farber's statement of his opinion about Ms. Moore's role in the demise of the Heritage Front is incapable of constituting the blameworthy conduct directed at Ms. Hategan that would be necessary to underpin the elements of the torts of injurious falsehood, civil conspiracy, wrongful appropriation of personality, unlawful interference with economic interests or negligence. Moreover, Ms. Hategan has failed to bring any evidence of damage arising from any alleged acts by Mr. Farber.

18Mr. Farber submits that in light of the manifest defects in Ms. Hategan's pleadings, to which she has been alerted; of the clear lack of evidence for any of the torts alleged; of the failure to provide any evidence of damages and of the numerous salacious irrelevancies and unnecessary disclosures of confidential and personal information of third parties in which she indulges in these proceedings, Ms. Hategan's action is frivolous and vexatious. It ought to be dismissed on summary judgment, with costs on a substantial indemnity basis.

19The claim is stated to be against Ms. Moore and Mr. Farber jointly and severally for damages for "injurious falsehood, and conspiracy, wrongful appropriation of personality, unlawful interference with interests and negligence".⁸

20The only particularized fact pleaded with respect to Mr. Farber that is said to have occurred within two years of the issuance of the claim reads as follows:

65. Paikin also asked Moore about the details of Moore leaving the HF. In response, this question, Farber answered on behalf of Moore, stating the following:

By the way [Ms. Moore], was one of a couple women that were involved in the Heritage Front, both of whom, actually, Ms. Moore and another young woman by the name of [Ms. Hategan Hategan] both of them ended up being heroes in terms of how they were able to take themselves out, how they were able to work the system, to basically shut down the Heritage Front. And so in this particular case, its's kind of interesting that the women were the heroes in shutting this down. There were others involved as well, the Bristol Affair, he was the mole. All of this came together as a result of the women who full timely took a stand and said, we're not going to deal with this anymore.

21In response to this motion and the companion motion for summary judgement by Ms. Moore, Ms. Hategan served a 171-page affidavit together with 762 pages of exhibits.

22Paragraphs 166-175 of Ms. Hategan's affidavit constitute her submission as to how Mr. Farber's statements on The Agenda constitute each of the torts alleged in the claim.

23Additional facts set out in the affidavit are that Mr. Farber and Ms. Moore are both members of the executive of the Canadian Anti-Hate Network who have participated together in speaking engagements.

24As purported further evidence of Mr. Farber's tortious behaviour, under the heading of "Bernie Farber's Negligence and Endorsement of a Fraudulent Narrative," Ms. Hategan sets out at exhibit "000", attached to paragraph 297 of her affidavit, a number of tweets from Mr. Farber’s Twitter account.⁹

25Ms. Hategan also alleges that Mr. Farber has a professional relationship or connection with a number of individuals whom she believes have not behaved well toward her.¹⁰

Re: Cecil Roach, Para 212

Re: Grant Bristow, para. 301

Re: Warren Kinsella, para. 312

Re: Anti-Racism Canada, para. 326

Re: Barbara Perry, para. 341

26On this basis in each case she alleges a speculative causal connection between the relationship with Mr. Farber and his behaviour toward her.

27Ms. Hategan's affidavit also dwells at considerable length on salacious gossip and innuendo, much of it located long in the past, some involving third parties and their personal information, none of it relevant to any matter in issue in the litigation.

Ms. Moore’s Position

28In the early 1990s, Ms. Moore was by all accounts a regular girl growing up in a middle‑class family in Scarborough. When she was in high school, extremists exploited her vulnerability and isolation, and offered her a sense of belonging. As a result, Ms. Moore became a member of the Canadian extremist group, the Heritage Front.

29Ms. Moore became disillusioned with the Heritage Front and, with the help of Mr. Farber from the Canadian Jewish Congress, left the Heritage Front in the mid‑1990s. Today, drawing on her life experiences, Ms. Moore teaches about the dangers of radicalization.

30Ms. Hategan was also a member of the Heritage Front. Ms. Hategan left the Heritage Front just as Ms. Moore was becoming more involved in the group. Today, Ms. Hategan also speaks publicly about her life experiences as a former extremist.

31Ms. Moore and Ms. Hategan’s life stories have many similarities. They both had a troubled family life growing up and both felt that they were white minorities. They were both introduced to the Heritage Front when they were teenagers and became female members of an otherwise male‑dominated extremist group. They both left the group, fearful of repercussions, and started new lives for themselves. They now speak out about hate and anti-fascism.

32Ms. Moore’s position is that both women are entitled to speak about their lived experiences. Unfortunately, Ms. Hategan disagrees. In late 2018, Ms. Hategan commenced a claim against Ms. Moore seeking to prohibit Ms. Moore from discussing her own life story. Ms. Hategan’s claims centre around a belief that Ms. Moore has appropriated elements of her life, and that Ms. Moore is part of a conspiracy to profit from such appropriations. Since developing this belief, Ms. Hategan has engaged in a vicious campaign against Ms. Moore that has included publicly revealing intimate details about Ms. Moore’s life; buying up online domains in Ms. Moore’s name; and publishing dozens of derogatory statements about Ms. Moore online and elsewhere. As such, Ms. Moore has brought a counterclaim against Ms. Hategan in defamation.

Ms. Hategan’s Position

33Essentially Ms. Hategan’s position is that these motions cannot be dealt with on summary judgment. She submits that there are novel causes of action, potential new duties of care and conflicting evidence. As set out above, I do not agree. These are appropriate summary judgment motions.

The Issues

34This motion raises the following issues:

(a) Does Ms. Hategan’s claim for injurious falsehood raise a genuine issue for trial?

(b) Does Ms. Hategan's claim for civil conspiracy raise a genuine issue for trial?

(c) Does Ms. Hategan's claim for wrongful appropriation of personality raise a genuine issue for trial?

(d) Does Ms. Hategan's claim for unlawful interference with economic relations raise a genuine issue for trial?

(e) Does Ms. Hategan's claim for negligence raise a genuine issue for trial?

(f) Is Ms. Hategan's claim frivolous and vexatious?

Mr. Farber’s Submissions

Injurious Falsehood

35An injurious falsehood is an untrue or malicious statement made to a third party disparaging another person's business or property. The elements of the tort are:

(a) The published statements about Ms. Hategan's business or property must be untrue;

(b) They must be made maliciously, without just cause or excuse; and

(c) Ms. Hategan must have suffered special damages.¹¹

36Mr. Farber submits that Ms. Hategan alleges that over the past two years Mr. Farber (as well as Ms. Moore) have made false statements about Ms. Hategan and her business. She does not further particularize those allegedly false statements in her claim. In her affidavit, she identifies Mr. Farber's statements on The Agenda as constituting an injurious falsehood. There is no other statement made by Mr. Farber within the limitation period identified in Ms. Hategan's affidavit, with the exception of the tweets at exhibit "OOO" which contain no false statements about Ms. Hategan's business.¹²

37Neither the statements on The Agenda nor the series of tweets at exhibit "OOO" are capable of satisfying the prerequisites of the tort of injurious falsehood:

(i) the statements Ms. Hategan objects to are concerning Ms. Moore rather than Ms. Hategan's business;

(ii) insofar as Ms. Hategan is referred to in “The Agenda” statements, what is said about her is true;

(iii) Mr. Farber's statements represent an opinion about historical facts;

(iv) not about business or commercial facts;

(v) there is no claim for special damages in the claim and no evidence of special damages in Ms. Hategan's affidavit.

38I agree with these submissions. Ms. Hategan has not particularized the allegedly false statements. She only identifies Mr. Farber’s statements on The Agenda. In her affidavit she relies on the same but adds some tweets. The statements are not untrue. There is no evidence that they were made maliciously, without just cause or excuse. Further there is neither a claim nor evidence of special damages. The claim for injurious falsehood has not been made out against Mr. Farber.

Civil Conspiracy

39The elements of this tort are:

(a) an agreement between two or more defendants to injure the plaintiff by specific acts;

(b) the predominant purpose of the agreement is to injure the plaintiff; (or the conduct is directed at the plaintiff and the defendant knows or should know that injury to the plaintiff is likely);

(c) the defendants act in furtherance and of their agreement to injure; and

(d) the plaintiff suffers injury as a result.¹³

40Mr. Farber submits that Ms. Hategan has pleaded a conspiracy but that the facts as alleged are incapable of supporting the elements of the tort which must be demonstrated with particularity and specificity. In particular, insofar as the claim is said to be based on "tortious and unlawful statements" made by the defendants, this claim appears to be nothing more than a repetition of the claim for "injurious falsehood" or one of the other tort claims made with respect to the only statements by Mr. Farber put in evidence by Ms. Hategan (i.e. the statements in The Agenda and the tweets in exhibit "000"). If those statements are not tortious and unlawful, they appear incapable of causing harm to her or her business. And, indeed, there is no evidence of any loss arising to Ms. Hategan as a result of the statements.

41Mr. Farber also submits that there is no pleaded agreement to injure Ms. Hategan and no evidence of such agreement brought forward in Ms. Hategan's affidavit. As for the allegations of "collusion", there is no evidence of anything of that sort. Even Ms. Hategan is forced to qualify her allegations with descriptions like, "I believe Ms. Moore may have been introduced to Professor Perry through Bernie Farber". Aside from such throwaway lines, there is not one factual piece of evidence in support of any element of the tort.¹⁴

42As with every other tort alleged, there is no evidence of damage as a result of the alleged conspiracy. The section in Ms. Hategan's affidavit entitled "Evidence of Damage" (paras. 373‑382) contains expostulations about the unfairness of Ms. Moore reaping rewards which Ms. Hategan believes she does not deserve. However, despite the title, it contains no evidence of pecuniary loss by Ms. Hategan. Any references to loss or other damage are speculative and ungrounded in any facts. Although Ms. Hategan has pleaded conspiracy, the facts as alleged are incapable of supporting the elements of the tort. There is no evidence of any loss arising to Ms. Hategan from the statements in The Agenda or the tweets. There is no pleaded agreement to injure Ms. Hategan and no evidence in her affidavit. There is no evidence presented to support this tort. The claim for civil conspiracy has not been made out against Mr. Farber.

Wrongful Appropriation of Personality

43The tort of wrongful appropriation of personality involves the wrongful exploitation of the name and likeness of someone else for commercial purposes, such as when an athlete's name or image is used to endorse a product without the athlete's knowledge or consent. The elements of the tort are:

(a) use of another's personality;

(b) without consent;

(c) for commercial gain.¹⁵

44This tort is alleged by Ms. Hategan in paragraph 169 of her affidavit, in which she complains of "false and appropriative statements" made by Mr. Farber on The Agenda. The first statement complained of is Mr. Farber's reference to Ms. Moore as "the face" of the Heritage Front organization at the time she attended a lecture by him. The second "statement" complained of is his use of the plural "heroes" to describe both herself and Ms. Moore.¹⁶

45Mr. Farber submits that neither of those statements can satisfy the requirements for wrongful appropriation of personality. In those statements Mr. Farber does not use Ms. Hategan's name, image or likeness for commercial gain without her consent. It is clear that he is expressing an opinion about historical events. There is no possible way to construe his remarks as an attempt to use Ms. Hategan's name or image for commercial endorsement purposes. In addition, there is no evidence of commercial or economic gain to Mr. Farber or damage to Ms. Hategan flowing from these words.

46There is no tort related to privacy pleaded, nor are there any facts related to privacy alleged anywhere in the materials.

47The claim under discussion is and has always been focused on the right to control publication.

48There is nothing novel about that element of the claim; its novelty is and has always been in attempting to extend it beyond the right to control publication of one’s name and likeness into a nebulous and insupportable claim to control how someone else markets experiences similar to one’s own.

49Jane Doe v. ND,¹⁷ which deals with publication of images, is of no assistance in Ms. Hategan’s attempt to assert control over incorporeal ideas.

50Again, I agree with these submissions. No evidence has been presented to support the requirements for wrongful appropriation of personality, specifically that Mr. Farber has attempted to use her name or image for commercial endorsement purposes. There is no evidence of commercial or economic gain. This claim for wrongful appropriation of personality has not been made out against Mr. Farber.

Unlawful Interference with Economic Interests

51Ms. Hategan's claim for unlawful interference with economic interests is based on her allegations of false public statements regarding Ms. Moore's life and experience that constitute appropriations of her life. Ms. Hategan further alleges that these "appropriations" "both directly and indirectly caused her to lose economic opportunities to secure contracts and earn compensation."¹⁸

52As concerns Mr. Farber, the only statements made within the limitations period put into evidence by Ms. Hategan are, once again, the statements on The Agenda and in exhibit "OOO". Mr. Farber submits that none of these can support the elements of the tort of wrongful interference with economic interests.

53The tort of wrongful interference with economic interests is intended to apply in situations where a tortfeasor commits an unlawful act against a third party that intentionally causes harm to the plaintiff. So long as the conduct would have been actionable by the third party, the plaintiff may sue even though the unlawful act was not committed directly against the plaintiff. As described by the Supreme Court of Canada, "its core captures the intentional infliction of economic injury on C (the plaintiff) by A (the defendant)'s use of unlawful means against B (the third party)".¹⁹

54Mr. Farber submits that none of this applies to the facts as pleaded or to any evidence adduced by Ms. Hategan. As for considering the allegations made in the claim as possible proof of damages, those allegations are unsupported by any factual evidence. The section in Ms. Hategan's affidavit entitled "Evidence of Damage" contains no evidence of damages, its title notwithstanding.

55Finally, Mr. Farber submits that counsel for Ms. Hategan’s statement of the law regarding this tort in her supplementary factum is incorrect. However, Grand Financial Management v. Solemio Transport Inc.,²⁰ which Ms. Hategan cites, is entirely consistent with the law as stated by the moving parties. Indeed, that case law is cited and relied upon in the Grand Financial case. There must be tortious conduct vis à vis a third party that causes the interference with the plaintiff’s economic relations.²¹ In any event, an unquestionable element of the tort is that the plaintiff must have suffered special damages by way of economic loss.²² This element is neither pleaded by Ms. Hategan, nor is there any evidence whatsoever of economic loss or special damages anywhere in the material.

56Again, I agree with these submissions. There is no evidence of a tort being committed against a third party that internationally caused harm to Ms. Hategan. Further there is no evidence of special damages by way of economic loss. The claim for unlawful interference with economic interests has not been made out against Mr. Farber.

Negligence

57In order to establish negligence, it is necessary to demonstrate

(a) a duty of care to the plaintiff arising out of a special relationship between the plaintiff and the defendant;

(b) a statement of care to be expected from a reasonable person in the position of the defendant;

(c) a breach of that duty;

(d) damages; and

(e) a causal connection between the breach and the damages.²³

58The claim pleads a bald allegation of negligence against Mr. Farber with no particulars or specific facts cited against him.

59In response to Mr. Farber's statement of defence, which pointed out the fatal deficiencies in the claim, Mr. Farber submits that Ms. Hategan's affidavit spends an entire section entitled "Bernie Farber's Negligence and Endorsement of a Fraudulent Narrative," attempting to shoehorn her allegations into the elements of the tort, notably the need for a duty of care.²⁴

60Mr. Farber submits that the attempt was entirely unsuccessful. Even if an affidavit was capable of curing the fatal pleadings defect, the only duty Ms. Hategan is able to suggest is an abstract duty by Mr. Farber to the Jewish community or to the community served by the Mosaic Institute. That duty, even if it were to arise, would not satisfy the need in this instance for a specific duty to Ms. Hategan, arising out of a special relationship with her. Even if there was evidence of a breach, Ms. Hategan could not claim damages personally for an alleged breach of an abstract duty to a general community.

61In any event, damage is an essential element of negligence.²⁵ As with every other tort alleged, other than hard feelings, which are not compensable on their own, there is no evidence of damages, let alone of any causal connection with any alleged breach of any unproven standard for an unproven duty of care toward Ms. Hategan.

62In response to Ms. Hategan’s supplementary factum, Mr. Farber submits that the potentially new duty of care is not pleaded and, more tellingly, there is no evidence cited anywhere in the materials in support of any of the elements of the tort of negligence, let alone of the “novel” aspects claimed in the supplementary factum. As to the “special relationship” alleged to exist between Ms. Hategan and Mr. Farber that is said to raise a duty of care, there is no evidence in the materials to support the existence of the “community” described, or of Mr. Farber’s membership in it, let alone of a causal connection between breaches of an imagined standard of care in discharging such duties and the essential requirement of any actual pecuniary damages.

63Again, I agree with these submissions. No particulars have been set out. More importantly, there is no special relationship between Mr. Farber and Ms. Hategan. Further there is no evidence of damages. I already indicated that I was not expanding the law regarding a new duty of care, which in any event is not pleaded. The claim for negligence has not been made out against Mr. Farber.

Is Ms. Hategan’s Claim Frivolous and Vexatious?

64Mr. Farber submits that Ms. Hategan's claim against him is entirely based on his having said on The Agenda that in his view both Ms. Hategan and Ms. Moore were heroes for having disentangled themselves from the white supremacist movement and having worked the system to basically shut down the Heritage Front. Mr. Farber’s submission is that Ms. Hategan is free to disagree with this assessment, but that there is no reasonable way that this opinion can be fairly interpreted as a falsehood about Ms. Hategan; as a step in a conspiracy to injure her; as an appropriation of Ms. Hategan's name or image; as a wrong against a third party intended to damage Ms. Hategan; or as an error or careless act in breach of some special duty owed by Mr. Farber to Ms. Hategan that caused her demonstrated damage.

65Mr. Farber submits that Ms. Hategan was duly warned about basic and obvious flaws in her claim and chose instead to double down with an affidavit replete with irrelevant and scandalous information and allegations about third parties, including involving third parties' personal information. However, she has provided no evidence of anything resembling wrongdoing by Mr. Farber. Even making allowances for the fact of self-representation, her action is a waste of the time and resources of the courts.

66I agree that this action is frivolous and vexatious in that none of the alleged torts succeed and despite being told about the flaws in her claim, she chose to file an irrelevant and scandalous affidavit.

Ms. Moore’s Submissions

67Ms. Moore submits that Ms. Hategan’s action cannot succeed. Despite filing an affidavit that is 171 pages in length, which attaches over 800 pages of exhibits, and despite cross-examining Ms. Moore, Ms. Hategan has failed to provide any evidence to support the claims alleged.²⁶ Instead of providing supporting evidence, Ms. Hategan relies on speculation, unfounded allegations, and conspiracy theories.

Wrongful Appropriation of Personality

68Ms. Moore submits that Ms. Hategan’s main claim is that Ms. Moore appropriated aspects of her life and identity for Ms. Moore’s own benefit and financial gain.

69To be held liable for the tort of wrongful appropriation of personality, Ms. Moore must “be taking advantage of the name, reputation, likeness or some other component of Ms. Hategan’s individuality or personality which the viewer associates or identifies with Ms. Hategan.”²⁷ Courts have limited this tort to cases in which the likeness of a public figure has been used, without permission, for advertising or other commercial purposes.²⁸ Indeed, the Ontario Court of Appeal has specifically expressed caution at extending this tort beyond situations in which a person’s name or likeness is falsely used as endorsement, stating that the danger is “obvious.”²⁹

70Ms. Moore further submits that Ms. Hategan has provided no evidence that Ms. Moore has used her name, face, reputation or likeness, which the public associates or identifies with Ms. Hategan, for commercial purposes. Ms. Hategan is not a public figure with whom Ms. Moore is trying to associate in an attempt to take advantage of Ms. Hategan’s reputation or good will. At best, Ms. Hategan submits that Ms. Moore has used aspects of Ms. Hategan’s life story and passed them off as her own, including joining the Heritage Front while still in high school; becoming a prominent female spokesperson; contributing to the downfall of the Heritage Front; and being in danger following the defection from the group.

71Ms. Moore submits that she is not “passing off” or “appropriating” these facts. These are facts based on her own life experiences. The lives of Ms. Hategan and Ms. Moore share many similarities. Ms. Hategan may believe that the statements equally apply to her, or perhaps that she has more of a “right” to make these statements, but that does not amount to a claim for wrongful appropriation of personality, or any legal claim for that matter.

72Ms. Hategan may believe that she,

(a) was more immersed in the white supremacist movement than Ms. Moore;

(b) was the “female face” of the Heritage Front;

(c) deserves exclusive recognition for being “the only young woman who was involved in shutting down” the Heritage Front; and

(d) is better qualified to speak about the fascist movement,

but this does not amount to an actionable wrong to be remedied. Ms. Moore is entitled to draw on her lived experiences and share those experiences with others.

73In her supplementary factum Ms. Hategan submits that her claim for appropriation of personality ought to survive summary judgment. Ms. Moore submits that this argument must fail for the following reasons:

(i) First, the tort of appropriation of personality is well settled. This tort is not a new or novel tort. It has been the subject of judicial rulings since 1977, when the tort was first recognized in Canada in Athans v. Can. Adventure Camps Ltd.³⁰ Its test has since been firmly established in the jurisprudence. It protects against the “unauthorized use of a name or likeness of a person as a symbol of [her] identity”.³¹ Ms. Hategan does not meet the test. Ms. Hategan has asserted that Ms. Moore has “copied” details of her life. This assertion, even if true, would not meet the test as Ms. Moore is not using Ms. Hategan’s name or likeness in any unauthorized way.

(ii) Second, Ms. Hategan, seemingly aware that she does not meet the current test, submits she is seeking an “expansion” of the test for the tort of appropriation of personality and as a result, summary judgment is not appropriate. This argument is disingenuous. Ms. Hategan is attempting to change the elements of an existing tort because she does not meet the long-accepted test. It is inappropriate for Ms. Hategan to avoid a summary judgment motion by putting forward a frivolous legal claim that is not based on jurisprudence. In other words, Ms. Hategan cannot bend existing law to concoct a possible “novel” claim just so she can survive a motion for summary judgment.

(iii) Third, courts in Canada have specifically held that this tort should not be expanded, due in particular to concerns about how such an expansion could affect the public interest and freedom of expression.³²

(iv) Finally, even if Ms. Hategan had a legitimate argument that the facts of this case are appropriate for expansion of the tort, and even if this court was willing to entertain the argument, Ms. Hategan has not adduced any evidence to support her argument that a “new” or “expanded” tort of misappropriation of personality is appropriate. Ms. Hategan has not offered any case law or policy considerations to support the expansion of this tort. This is not a case that “cries out” for a new or expanded tort.³³

(v) Moreover, Ms. Hategan has not put forward sufficient evidence to meet the test for a tort of “appropriation of life”, whatever the elements of such a test might be.

74All Ms. Hategan has done to support this claim is to dispute how Ms. Moore interprets the details of her own life. At all times, Ms. Moore’s unshaken evidence has been that she has only ever truthfully spoken about the details of her own life. There is no evidence to support a claim for misappropriation of personality, even if that test were expanded beyond its currently accepted boundaries.

75I agree with these submissions. I have already indicated that I am not prepared to change or expand the law on this tort. This tort is well settled and protects against the unauthorized use of a name or likeness of a person as a symbol of her identity. Ms. Hategan does not meet the test. Ms. Moore is not using Ms. Hategan’s name or likeness in any unauthorized way. This tort claim fails against Ms. Moore.

Injurious Falsehood

76Ms. Hategan claims damages for injurious falsehood because “Moore and Farber have made false statements referring to Ms. Hategan and/or her business”. Ms. Moore submits that this claim cannot succeed.

77Actions for injurious falsehood require the publication of false statements, either orally or in writing, reflecting adversely on Ms. Hategan’s business or property, or title to property, and calculated to induce persons not to deal with Ms. Hategan. Ms. Hategan must show that the published statements are untrue, that they were made maliciously – that is, without just cause or excuse – and that Ms. Hategan suffered special damages.³⁴

78Ms. Hategan submits that Ms. Moore uttered false statements not about Ms. Hategan, but about her own life. Ms. Hategan’s concerns stem from minor discrepancies in details (i.e., the age at which Ms. Moore became a card-carrying member of the Heritage Front) and about the subjective qualifiers that Ms. Moore uses to describe her past experiences. This is not an actionable wrong.

79At no time has Ms. Hategan particularized the alleged “false statements” that were published by Ms. Moore, how these alleged false statements reflect adversely on her business, or how these false statements were published to induce persons not to deal with her. Moreover, Ms. Hategan has not claimed or particularized any special damages, which is a necessary element of the tort. Ms. Moore submits that the claim must fail on this basis alone.

80To the extent that Ms. Moore commented to others that she is the victim of online harassment, those statements are not false – they are true and, in any event, reflect her own opinions. Moreover, at no time has Ms. Moore ever publicly used Ms. Hategan’s name or gender to describe the online harassment from which she suffers.

81I agree with these submissions. Ms. Hategan has not established that any statements were false and that they were made maliciously and that she suffered special damages. This tort claim fails against Ms. Moore.

Civil Conspiracy

82Ms. Hategan has advanced a claim of civil conspiracy and alleges that both Ms. Moore and Mr. Farber have “made and endorsed false representations that Ms. Hategan’s experiences in the Heritage Front were Moore’s experiences”. Ms. Moore submits that this allegation is devoid of any merit.

83The elements of civil conspiracy are as follows:

(a) an agreement between two or more persons to injure Ms. Hategan by specific acts;

(b) Ms. Moores acted in furtherance of the agreement;

(c) the predominant purpose of the agreement was to injure Ms. Hategan (or Ms. Moore’s conduct was unlawful, directed toward Ms. Hategan, and Ms. Moore knew or should have known that injury to Ms. Hategan was likely); and

(d) Ms. Hategan was injured as a result of the conspiracy.³⁵

84Ms. Moore submits that the allegation of civil conspiracy is unfounded and entirely speculative. Ms. Hategan has not pleaded any of the necessary elements. There are no facts, circumstances or particulars from which a trier of fact would be able to infer that Ms. Moore and Mr. Farber entered into an agreement with each other to purposefully injure Ms. Hategan, or that Ms. Moore and Mr. Farber acted in furtherance of this alleged agreement.

85Instead, the evidence is that Mr. Farber assisted Ms. Moore to leave the Heritage Front. Since that time, the two have been friends and often appear on panels and other speaking engagements together because of their shared work in anti-hate. Ms. Moore has enjoyed professional success as a public speaker on the topic of anti-racism, and has been endorsed by numerous individuals, including Mr. Farber. Ms. Moore points out that this is not an actionable wrong.

86I agree with these submissions. First of all, the necessary elements are not pleaded. There is no evidence of an agreement between Ms. Moore and Mr. Farber that they entered into an agreement to purposefully injure Ms. Hategan or that they acted in furtherance of this alleged agreement.. This tort claim fails against Ms. Moore.

Unlawful Interference with Economic Interests

87The tort of unlawful interference with economic relations allows a plaintiff to sue a defendant for economic loss that results from the defendant’s unlawful act against a third party.³⁶ As emphasized by the Supreme Court in A.I. Enterprise Ltd. v. Bram Enterprises Ltd., the tort’s core “captures the intentional infliction of economic injury on C (the plaintiff) by A (the defendant)’s use of unlawful means against B (the third party)”.³⁷ The tort is only available where the defendant committed an actionable wrong against a third party that was also intended to target the plaintiff and/or the plaintiff’s economic activities.³⁸

88Ms. Hategan does not specify any third party to whom an actionable wrong has been committed. Ms. Hategan submits that Ms. Moore made defamatory comments to anti‑racism expert Barbara Perry, and that those comments are an actionable wrong against a third party. This is incorrect. As confirmed on cross-examination, Ms. Moore communicated to Ms. Perry that “I was being stalked by somebody who had been in the Heritage Front. I did not say your [Elisa’s] name. I did not say your [Elisa’s] gender.”³⁹ Ms. Perry would have no actionable claim against Ms. Moore for these comments. In any event, they were communicated as Ms. Moore’s opinion.

89Contrary to Ms. Hategan’s assertion, Ms. Moore and Mr. Farber have not misstated the test for intentional interference with economic relations. Indeed, Ms. Hategan’s supplementary factum itself relies on the very test Ms. Moore and Mr. Farber use, as does the case relied on by Ms. Hategan.⁴⁰

90I agree with these submissions. Ms. Hategan has not specified any third party to whom an actionable wrong has been committed nor is there any such third party. This tort claim fails against Ms. Moore.

Negligence

91Ms. Hategan alleges that Ms. Moore negligently appropriated key aspects of her life. Ms. Moore submits that this claim must fail.

92The general law of negligence requires the court to find that a duty of care is owed by one party to another, that the duty of care was breached by the acts or omissions of one of those parties, that the aggrieved party suffered harm, and that the harm would not have occurred but for the acts or omissions of the offending party.⁴¹

93Ms. Hategan has failed to identify any relationship between her and Ms. Moore that would establish a duty of care. There is no proximate relationship between the two women such that harm was a reasonably foreseeable consequence of Ms. Moore’s conduct.⁴² Ms. Moore submits that on this basis alone, the claim for negligence must fail.

94Ms. Hategan has also failed to specify the standard of care owed, and failed to establish how Ms. Moore is alleged to have breached it. Ms. Moore’s comments about her own personal life experiences is not a breach of any known standard of care.

95In any event, damage is an essential element of the tort of negligence.⁴³ Ms. Hategan has failed to lead any evidence of the alleged “emotional distress and economic loss” sustained as a result of Ms. Moore’s alleged negligence. Any damages are purely speculative.

96Ms. Moore eventually came to the same realization as Ms. Hategan. In late 1994, Ms. Moore began to appreciate that the Heritage Front was lying to her about the full extent of its activities.⁴⁴ When she finally realized that she was being manipulated, Ms. Moore got in touch with Mr. Farber, the head of the Canadian Jewish Congress. With his assistance, in mid-January of 1995 at the age of 21, Ms. Moore left the Heritage Front.⁴⁵ Not surprisingly, after leaving the Heritage Front, Ms. Moore was concerned for her safety. She moved frequently because the Heritage Front “made it clear that they were watching where I was living; they were following me.”⁴⁶

97Ms. Hategan takes issue with Ms. Moore using the word “defect” to describe Ms. Moore’s departure from the Heritage Front. It appears that Ms. Hategan takes the position that only she is entitled to use the word “defect” because Ms. Moore was not in any danger when she left the group. As Ms. Moore explained: “the best descriptor at the time when I left, was to say that I defected.”⁴⁷ This is an issue of semantics and not of factual accuracy.

98No one is doubting Ms. Hategan’s contribution to the demise of the Heritage Front. The contention between the parties rests on Ms. Hategan’s belief that she was the “only young woman who played any role whatsoever in the collapse of the Heritage Front”⁴⁸ and that she has therefore “earned the right to state unequivocally that I contributed to the shutting down of the Heritage Front”.⁴⁹ Ms. Hategan’s allegation is that Ms. Moore is lying or engaging in appropriation when she states that she, too, contributed to the downfall of the Heritage Front.

(i) First, there is no evidence that Ms. Moore herself has ever claimed (before filing affidavit evidence in this litigation) that her actions contributed to the shut-down of the Heritage Front.⁵⁰ The only evidence is that others have made this claim.⁵¹

(ii) Second, even if this were the case, there is nothing untrue about Ms. Moore stating that, in her opinion, she assisted in taking down the Heritage Front. In Ms. Moore’s own words:

I worked very hard to leave The Heritage Front, and I now speak out against racist extremism. I believe that my defection and my voice of experience and dissent was one of the many elements that led to The Heritage Front’s collapse.⁵²

I have not stated in here that my contributions are equal to yours or equal to anybody else’s, but I certainly contributed. And as I stated previously, there are many elements that led to the Heritage Front’s demise […] and to inflate one person’s narrative over the collective is, I believe, unfair.⁵³

99Ms. Hategan had a similarly troubled upbringing to Ms. Moore. Ms. Hategan grew up in Bucharest, Romania and moved to Canada at the age of 11.⁵⁴ Compared to the “rigid communist dictatorship that enforced conformity”, Canada “seemed to demand the opposite – individuality and multiculturalism”; as a result, Ms. Hategan felt “lost”.⁵⁵ Ms. Hategan’s mother was “violent and physically abusive.”⁵⁶ At the age of 14, Ms. Hategan ran away and ended up living in a group home, where she “was the only white girl”.⁵⁷ At the time, she felt that the other children “were picking on me because of my race”.⁵⁸

100Ms. Hategan may not agree that Ms. Moore’s family life amounts to a “troubled” family, but this is Ms. Moore’s opinion based on her lived experiences.

101While they were teenagers, both women sought out answers to make sense of their respective situations and were introduced to the Heritage Front.

102Ms. Hategan was introduced to the Heritage Front when she was a teenager. In 1991, at the age of 16, Ms. Hategan met with Wolfgang Droege, who assured her that the group was “a political lobby group”, and she joined the organization.⁵⁹ As soon as she became a member of the Heritage Front, Ms. Hategan began recording messages for the hotline, speaking at rallies, writing for Up Front, a racist publication put out by the Heritage Front, and working for the well-known white supremacist Ernst Zundel.⁶⁰ She also spoke to the media on behalf of the Heritage Front on a number of occasions.⁶¹

103Ms. Moore was similarly introduced to the Heritage Front when she was a teenager. In the first half of 1992, Ms. Moore’s classmate introduced her to the group, which she naively believed was an advocacy group for European culture and heritage.⁶² Moved by anger and ignorance, Ms. Moore embraced the extremist organization and, by the fall of 1992, Ms. Moore was actively supporting the Heritage Front⁶³ by associating with its members⁶⁴ and handing out Heritage Front business cards.⁶⁵ Ms. Moore was 18 years old at the time.

104From 1993 to 1995, Ms. Moore’s activities with the group increased. She was tasked with recruiting members into the group, writing articles for Up Front, and recording “hate-line” messages on one of the group’s telephone hotlines. Ms. Moore conducted media interviews on behalf of the group and participated in Hearts of Hate: A Battle for Young Minds, a 1995 documentary about the white supremacist movement in Canada.⁶⁶ Ms. Moore also worked for Ernst Zundel. This evidence was unshaken during cross-examination.⁶⁷

105Ms. Moore does not recall when she became an official card-carrying “member” of the group, but believes it was sometime in mid-1993.⁶⁸ The fact that Ms. Moore cannot remember this exact date is not, as suggested, evidence that she is lying about her life or appropriating this experience from Ms. Hategan. In Ms. Moore’s own words, “whether it is 18 or 19 doesn’t - it is not important to me. It is a minor detail”⁶⁹ from over 25 years ago.

106In her claim, Ms. Hategan takes issue with Ms. Moore calling herself a “prominent female spokesperson” of the Heritage Front and alleges that this amounts to an appropriation of her life story.⁷⁰ Ms. Moore is left in the bizarre position of having to prove that she was once a neo‑Nazi in order to gain credibility.

107By Ms. Hategan’s own admission, she discovered her alleged claim of appropriation against Ms. Moore in February of 2015 and even “confronted her [Ms. Moore] in writing about the appropriation of significant elements of my [Ms. Hategan’s] life.” The statement of claim was only issued on December 10, 2018, long after the two-year limitation period expired in February of 2017.⁷¹

108I agree with these submissions. There is no duty of care between Ms. Moore and Ms. Hategan and as a result harm was not a reasonably foreseeable consequence of Ms. Moore’s conduct. Further there is no evidence of damage as a result of Mr. Moore’s alleged negligence. This tort claim fails against Ms. Moore.

Ms. Hategan’s Submissions

Wrongful Appropriation of Personality

109Ms. Hategan submits that this court should protect her reputation and unique life story from commercial exploitation by Ms. Moore by accepting that Ms. Moore has committed tort of wrongful appropriation of personality. Ms. Hategan submits that since 1973, Ontario’s courts have recognized a common law tort of wrongful appropriation of personality, which protects a plaintiff's personality from wrongful use.⁷² The law in Canada is settled that a defendant may be liable for the tort of wrongful appropriation of personality if they exploit the plaintiff’s name, reputation, likeness, or some other component of the plaintiff’s individuality or personality.⁷³ The cause of action is proprietary in nature and the interest protected is that of the individual in the exclusive use of their own identity insofar as it is represented by their name, reputation, likeness or other value.⁷⁴

110Ms. Moore generates profits as a public speaker and expert on extremism. Ms. Hategan testified that she has lost business opportunities as a result (paid speaking engagements, etc.). Ms. Hategan submits that a deep dive into the life experiences of these two individuals – with evidence from sources other than Ms. Hategan and Ms. Moore – is required to adjudicate this issue in a fair and just manner, and such a process can only be achieved through the machinery of the full discovery and trial procedures.

111In her factum, Ms. Moore submits that taking Ms. Hategan’s claims at their highest (i.e. accepting all of her evidence) leads to a likely result that the claims have no merit. Ms. Hategan disagrees. She claims that Ms. Moore lifted facts, storylines and key pieces of Ms. Hategan’s life story and falsely passed them off as her own “lived experience” for commercial profit and to the detriment of Ms. Hategan.

112Ms. Hategan submits that this is precisely what this tort is designed to protect, lying in the gap not covered by copyright and trademark infringement. The tort allows an individual to control the commercial use of their name, image, likeness, voice, reputation, or other aspects of their identity.

113I do not agree with these submissions. Yes there is a tort of wrongful appropriation of personality. This tort is not made out. It is not ever a “close call”.

Civil Conspiracy / Injurious Falsehood

114Ms. Hategan appears to submit that Ms. Moore and Mr. Farber engaged in a conspiracy to injure her. A conspiracy requires two or more parties to agree to do something, whether explicitly or implicitly, that is wrong or illegal. The tort of conspiracy can be proven in the following two ways:⁷⁵

I. First, where the plaintiff shows that the predominant purpose of the defendant’s conduct is to cause injury to the plaintiff, whether the means used by the defendants are lawful or unlawful; or,

II. Second, where the plaintiff shows that conduct is directed towards the plaintiff (alone or together with others), the conduct of the defendants is unlawful and the defendants know or should know when the circumstances that injury to the plaintiff is likely to result.

115Ms. Hategan acknowledges that her evidence in this respect is limited, but points out that this action is pre-discovery. According to Ms. Moore’s own evidence, Mr. Farber and Ms. Moore worked closely together for years cultivating Ms. Moore’s brand, which Ms. Hategan submits included appropriating aspects of Ms. Hategan’s life story.

116Ms. Hategan denies that there are “no facts, circumstances or particulars from which a trier of fact would be able to infer that the Defendants entered into an agreement with each other to purposefully injure the plaintiff[…]”.⁷⁶ Ms. Hategan’s unique life story was known to Ms. Moore and Mr. Farber. To succeed in the anti-racism space, it would be in Ms. Moore and Mr. Farber’s interest to hyperbolize Ms. Moore’s role in, and later against, the Heritage Front in a manner akin to Ms. Hategan’s experience.

117I do not agree with these submissions. Ms. Hategan appears to be ignoring the law on a summary judgment motion that a party is expected to put its best foot forward or otherwise lead trump or risk losing as this tort is not made out. Again it is not even a “close call”.

Tort of Intentional Interference with Economic Relations

118Ms. Hategan submits in her supplementary factum that the moving parties misstate the proper test for the tort of intentional interference with economic relations in that they both argue that for the tort to operate, Ms. Moore must have committed a prima facie tort as against a third party.⁷⁷

119Ms. Hategan disagrees. The Ontario Court of Appeal has stated that the tort will be made out where the defendant’s actions would permit a third party to advance claims arising from the deceit or negligence in those statements.⁷⁸ In this case, Ms. Hategan submits that ongoing misstatements by Ms. Moore and Mr. Farber could reasonably have led to claims of deceit or misstatement that may have affected the reputation, goodwill and economic standing of various organizations, publishers and broadcasters who were publicizing them - as is described in Ms. Hategan’s fresh as amended statement of claim.⁷⁹

120The moving parties have correctly stated the law and as set out above, this tort is not established by Ms. Hategan.

Ms. Hategan’s Claims are Not Statute Barred

121In her factum, Ms. Moore states that Ms. Hategan’s claims are statute-barred. She relies on purported knowledge of appropriation in February 2015, and the claim being issued December 10, 2018.

122Ms. Hategan’s position is that her claims are not statute-barred.

123Ms. Hategan’s claims are not discrete. She submits that while some opportunities dating back to the 1990s may not be actionable due to the passage of time, Ms. Moore’s appearances, statements and conduct from 2017-2019 certainly are. In the voluminous record before this court, there are events and circumstances that are not statute-barred by any objective measure.

124She further submits that even the interactions dating back to 2015 upon which Ms. Moore relies to defeat Ms. Hategan’s claim are not obviously statute‑barred. Discoverability is a live issue that cannot be resolved in this case on summary judgment.

125Ms. Hategan also provides the following submissions on why there is no limitation period issue. A limitation period would only begin to run “having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it” – a factually specific exercise.⁸⁰

126In addition, and in the alternative to the arguments made at paragraphs 66-69 in her original factum regarding the limitations defence, Ms. Hategan submits that Ms. Moore’s appropriation only went beyond harassment and offensiveness in 2017 – when the appropriation began to have a meaningful economic impact in the aftermath of the August 12, 2017 “Unite the Right” rally in Charlottesville, Virginia. It was only after the events of Charlottesville that the defendants’ actions obtained an economic currency for Ms. Hategan that made a claim for damages appropriate under the circumstances.⁸¹ The claim was issued on December 10, 2018 – just over one year later.

127I agree that some of Ms. Hategan’s claims may be statute‑barred but not all. In view of my other findings, I need not make a determination of this issue.

Counterclaim

128Ms. Moore has a counterclaim for damages in defamation and is seeking summary judgment of that claim. Ms. Hategan denies any defamation and submits that this is not an appropriate summary judgment motion, which requires a full trial. Again this is an appropriate summary judgment motion.

Ms. Moore’s Submissions

129In her counterclaim, Ms. Moore seeks general damages for defamation; invasion of privacy; appropriation of likeness and appropriation of personality; and interference with economic relations. Ms. Moore submits that she has provided the necessary evidentiary foundation to prove each of these claims, and that summary judgment ought to be granted.

Ms. Hategan has defamed Ms. Moore

(A) The impugned words are defamatory

130There are three elements to the tort of defamation: (i) the words complained of were published to at least one other person; (ii) the words complained of referred to the plaintiff; and (iii) the impugned words are defamatory, in the sense that they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person. Where these three elements are established, falsity and damages are presumed.⁸²

131Ms. Moore submits that the defamatory statements meet all three of these elements. First, the defamatory statements were published by Ms. Hategan. The majority of the defamatory statements were posted online on a variety of social media platforms and websites accessible worldwide to thousands of viewers. In certain instances, the defamatory statements were emailed directly to third parties and, with respect to the “case summary”, was emailed to over 500 people. Secondly, Ms. Moore is the clear target of the defamatory statements. The Court of Appeal for Ontario has confirmed that defamation can be made out through statements that do not refer specifically to the plaintiff, in this case Ms. Moore, but follow previous statements in which Ms. Moore is specifically identified. In most cases the defamatory statements expressly identify Ms. Moore by name or photograph. In certain defamatory statements, she is not specifically named, but these statements follow previous statements in which she is specifically identified.⁸³ A reasonable reader would understand that the publication is about Ms. Moore.

132Finally, Ms. Moore claims that there is no question that the defamatory statements would tend to lower Ms. Moore’s reputation in the eyes of a reasonable person. She submits that the defamatory statements are of the most serious nature, containing accusations of manifestly improper and immoral conduct, and contain all the essential hallmarks of expression that is not worthy of protection. In their plain and ordinary meaning, the defamatory statements would be understood to mean that Ms. Moore is a stalker; is a liar; is dangerous; is not to be trusted; has engaged in unethical and illegal behaviour; is homophobic; is lying about being bisexual; is a bigot; is delusional; suffers from mental illness; has engaged in fraud; has capitalized on white supremacy for personal gain; has colluded with individuals and organizations to attain financial gains; has appropriated Ms. Hategan’s experiences for her own personal and financial gain; trades sexual favours for success; and has committed perjury by lying in an affidavit filed with the court.

133I agree that the tort of defamation has been made out. The words complained of were published to at least one other person; the words complained of referred to Ms. Moore either directly or indirectly and the impugned words are defamatory, in the sense that they tend to lower Ms. More’s reputation in the eyes of a reasonable person.

(B) There are no defences available to Ms. Hategan

134Ms. Moore submits that even on a liberal reading of the defences raised by Ms. Hategan, namely, justification and fair comment, Ms. Hategan has no valid defences to the claim of defamation.

135The defence of justification arises if Ms. Hategan can prove the truth of all defamatory statements. If the statement is an opinion, Ms. Hategan must prove that the facts as stated are true, and warrant the imputation given in the sense that the opinion is a conclusion which ought to be drawn from those true facts.⁸⁴ Ms. Moore alleges that Ms. Hategan has failed to provide any evidence that the defamatory statements are true, but provides only speculation. The defence of justification is therefore not available.

136The defence of fair comment arises when the comments are based in proven fact and made in good faith on matters of public interest. The defence of fair comment will not succeed if the comment was made maliciously.⁸⁵ Ms. Moore submits that in this case, the defamatory statements are not based in proven fact and are not made in good faith on matters of public interest. Moreover, the defamatory statements were clearly published with malice. The presence of over 80 similar statements published on a variety of public forums or directly sent to friends and colleagues plainly speaks to Ms. Hategan’s abusive intent. The defence of fair comment is therefore not available.

137I agree that there are no defences available to Ms. Hategan. With respect to justification, Ms. Hategan’s statements (opinions) are not true. Further Ms. Hategan has failed to provide any evidence that the defamatory statements are true. She merely provides speculation. With respect to fair comment, the comments were in fact made maliciously and were not made in good faith on matters of public interest.

Ms. Hategan has invaded Ms. Moore’s privacy

138Ms. Moore submits that Ms. Hategan’s actions amount to the tort of public disclosure of embarrassing private facts. The information about Ms. Moore’s former extra-marital affair was conveyed to Ms. Hategan under strict promises of confidentiality. By publishing statements about these sexual relations, and falsely claiming that this was done to advance Ms. Moore’s career, Ms. Hategan has clearly given publicity to a matter concerning the private life of Ms. Moore. Ms. Moore submits that this publication is (i) highly offensive to a reasonable person; and (ii) is not of legitimate concern to the public.⁸⁶ Ontario courts have particularly noted the private nature of sexual relations and family quarrels, among others.⁸⁷

139Ms. Moore further submits that Ms. Hategan’s actions amount to the tort of breach of confidence. The information about Ms. Moore’s extra-marital affair was confidential, in that it was conveyed to Ms. Hategan under strict promises of confidentiality, and Ms. Hategan’s publication of that information was unauthorized and was to Ms. Moore’s detriment.⁸⁸ This confidential and highly intimate information was used to denigrate Ms. Moore’s personal and professional reputation, imputing that Ms. Moore received professional benefits from this and other sexual relationships. Damages, sufficient to mark the wrong that has been done, are warranted.⁸⁹

140I agree that this tort has been made out. The information about Ms. Moore’s extra‑marital affair was conveyed to Ms. Hategan in confidentiality. I agree that this information is highly offensive to a reasonable person and is not a legitimate concern to the public.

Ms. Hategan appropriated Ms. Moore’s personality and likeness

141Ms. Moore submits that Ms. Hategan appropriated Ms. Moore’s likeness by registering multiple websites and social media handles (the “domains”) in Ms. Moore’s name. Ms. Hategan inked many of the domains directly to her own website, so that when a person searched for Ms. Moore, they were redirected to Ms. Hategan’s information. In doing so, Ms. Hategan took advantage of the name, reputation and likeness of Ms. Moore’s personality. Ms. Hategan did this for commercial purposes and to boost her own professional reputation. As a direct result, Ms. Moore cannot register many of the domains that would naturally be used for her business - including variations of her name. Instead of using her own name, Ms. Moore has to use a fictional phrase - “one moore liz” - to promote herself online.

142I agree with the defendant that these actions constitute an appropriation of Ms. Moore’s personality and likeness.

Interference with Ms. Moore’s economic relations

143On at least two separate occasions, Ms. Hategan threatened to sue Ms. Moore’s professional colleagues in an attempt to interfere with Ms. Moore’s economic relations. Ms. Moore alleges that this amounts to the tort of intimidation,⁹⁰ and is an actionable wrong committed against a third party. In at least one instance, as admitted by Ms. Hategan, these threats led to a speaking engagement being cancelled. As a result of these actions, Ms. Moore has suffered economic harm and loss. Ms. Moore does not know how many other opportunities she may have lost out on, because Ms. Hategan has refused to produce relevant communications with third parties. Ms. Moore submits that an adverse inference should be drawn.

144Again, I agree with these submissions. Ms. Hategan has caused interference with Ms. Moore’s economic relation.

Damages

(C) Ms. Moore is entitled to damages

145General damages in defamation cases are presumed, without the need for proof of actual injury, once defamation is made out and none of the defences apply. Although each libel case is unique and determined on its particular nature and circumstances,⁹¹ the following factors are considered in determining the quantum of a general damages award for defamation: (i) Ms. Hategan’s position and standing; (ii) the nature and seriousness of the defamatory statements; (iii) the mode and extent of publication; (iv) the absence or refusal of any retraction or apology; (v) the conduct and motive of Ms. Moore from publication through judgment; and (vi) any aggravating or mitigating circumstances.⁹² The Court of Appeal has indicated that, where the defamatory statements are disseminated over the internet, these factors must be examined in light of the ubiquity, universality and utility of that medium.⁹³

146Ms. Moore submits that she is entitled to a high general damages award ($100,000.00) as set out in the proposed amended fresh as amended statement of defence and counterclaim. She is awarded $100,000.00.

147Ms. Moore also submits that she is entitled to aggravated and punitive damages each in the amount of $50,000.00. Aggravated damages are awarded in defamation cases where the defendant’s conduct has been particularly high-handed, malicious or oppressive, thereby increasing the plaintiff’s humiliation and anxiety arising from the defamatory statement. The entirety of the defendant’s conduct is taken into account.⁹⁴ Punitive damages are the means by which the court expresses its outrage for the egregious conduct of the defendant.⁹⁵

148Ms. Moore submits that aggravated and punitive damages are both appropriate and necessary to denounce the smear campaign in which Ms. Hategan continues to engage. Moreover, Ms. Moore notes that Ms. Hategan’s conduct has displayed a consistent disregard for the court process. Indeed, the day after receiving a cease and desist letter from Ms. Moore’s counsel, Ms. Hategan tweeted: “That’s because C&D [cease & desist] letters are not worth the paper they’re printed on. Imo, [in my opinion], either get serious about suing somebody, or get off the freaking pot.” After cross-examinations, Ms. Hategan tweeted a photo of the cross-examination transcript and alleged a conspiracy between Ms. Moore and CSIS. This document was not publicly filed and should not have been publicly disseminated.

149I agree that this egregious conduct must be addressed, and both aggravated and punitive damages awarded. She is awarded $50,000.00 for aggravated damages and $50,000.00 for punitive damages.

Injunctive Relief

150Permanent injunctions have been ordered in defamation actions where: (i) there is a likelihood that the defendant will continue to publish defamatory statements despite the finding that they are liable to the plaintiffs for defamation; or (ii) there is a real possibility that the plaintiffs will not receive any compensation, given that the enforcement against the defendant of any damage award may not be possible.⁹⁶

151Ms. Moore submits that both elements are met in this case. There is a strong likelihood that Ms. Hategan will continue to publish defamatory communications about Ms. Moore after judgment. Ms. Hategan’s campaign of defaming Ms. Moore has continued for years and did not abate even after this action was commenced. There is also a real possibility that Ms. Hategan will refuse or be unable to pay any judgment. In Ms. Hategan’s own words, “What people don’t realize: I have nothing left to lose. No assets to lose in libel case, nothing to stop me from telling the truth. So I will”. I agree that a permanent injunction is therefore necessary. As the wording of the injunction order may be in issue, I can be provided with a suggested order if necessary.

152Ms. Hategan’s action is dismissed and the counterclaim is granted.

153The parties can provide cost submissions. Mr. Farber and Ms. Moore within 21 days; Ms. Hategan within 14 days thereafter; and Mr. Farber and Ms. Moore reply within 7 days thereafter.

J.E. Ferguson J.

Footnotes

1. 1Rules of Civil Procedure, RRO 1990, Reg. 194, Rule 20.04(2)(a).
2. 2Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 at para. 4 [Hryniak].
3. 3Hyrniak, at paras. 49, 50.
4. 4Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co., 1996 7979 (ON SC), 28 O.R. (3d) 423 at para. 24.
5. 5Starcall Wireless Communications Inc. v. Bell Mobility Inc., 2017 ONSC 2813 at para. 29.
6. 6Chernet v. RBC General Insurance Co., 2017 ONCA 337 at para. 12.
7. 7Jacobson v. Skurka, 2018 ONSC 4483 at para 34; Khan v. Krylov & Company, 2019 ONSC 1666 at paras. 60-61.
8. 8fresh as amended statement of claim (“claim”), para. 1.
9. 9Hategan affidavit, Vol. 1, p. 128, para. 29, Vol. 2, pp. 672-682, exhibit "OOO".
10. 10Hategan affidavit, Vol. 1., Re: Steve Paikin, para. 168.
11. 11Lysko v. Braley (2006), 2006 11846 (ON CA), 79 O.R. (3d) 721 (C.A.) at para. 133.
12. 12affidavit vol. 1, p. 72, para. 171, Vol. 2, pp. 672-682, exhibit "OOO".
13. 13Normart Management Ltd. v. West Hill Redevelopment Co. (1998), 1998 2447 (ON CA), 37 O.R. (3d) 97 (C.A.) at paras. 21 and 22; Aristocrat Restaurants Ltd. v. Ontario [2003] O.J. No. 5331 (Ont. SC) at para. 39.
14. 14Hategan affidavit, 168, 30, vol. 1, para. 35
15. 15Krouse v. Chrysler Canada Ltd., 1973 574 (ON CA), 1 O.R. (2d) 225 (C.A.) [Krouse]; Gould Estate v. Stoddart Publishing Co., 1996 8209 (ON SC), 30 O.R. (3d) 520 (S.C.).
16. 16Hategan affidavit, vol. 1, para. 169.
17. 17Jane Doe v. ND, 2016 ONSC 541, 128 O.R. (3d) 352.
18. 18fresh as amended statement of claim at para. 89.
19. 19A.I. Enterprise Ltd. v. Bram Enterprises Ltd., 2014 SCC 12, [2014] 1 S.C.R. 177 at para. 23 [Bram].
20. 20Grand Financial Management v. Solemio Transport Inc., 2016 ONCA 175 [Grand Financial].
21. 21Ibid at para. 65.
22. 22Ibid at para. 75.
23. 23Donoghue v. Stevenson, [1937] UKHL 100.
24. 24Hategan affidavit, vol. 1, pp. 125-129, paras. 288-299.
25. 25Ramadhin v. New Venture Group Inc., 2018 ONCA 6, at para. 5.
26. 26Nandlal v. Toronto Transit Commission, 2015 ONCA 166, at para. 14.
27. 27Joseph v. Daniels, 1986 1106 (BC SC), 4 BCLR (2d) 239 (S.C.) at para. 14.
28. 28See, e.g., Athans Jr. v. Canadian Adventure Camps Co., 1977 1255 (ON SC), 17 O.R. (2d) 425 (H.C.); Chris D.L. Hunt, “The Common law’s Hodgepodge Protection of Privacy” (2015) 66 UNB LJ 161, p 8.
29. 29Gould Estate v Stoddard Publishing, 1996 8209 (ON SC), 30 O.R. (3d) 520 (Gen. Div.), at paras 14 to 17, citing Krouse, supra note 15.
30. 30(1977), 1977 1255 (ON SC), 17 OR (2d) 425, cited in Joseph v Daniels, 1986 1106 (BCSC).
31. 31Joseph v. Daniels, 1986 1106 (BCSC) at para 14.
32. 32Wiseau Studio, LLC et al. v. Harper et al., 2020 ONSC 2504, at paras. 210-217, citing Gould Estate v. Stoddart Publishing Co., 1996 8209 (ON SC), 30 OR (3d) 520.
33. 33Merrifield v. Attorney General, 2019 ONCA 205, 145 OR (3d) 494, at para. 41.
34. 34Lysko v Braley, 2006 9038 (Ont. C.A.) at paras. 133-34 [Lysko], citing Raymond E. Brown in The Law of Defamation in Canada 2nd ed. (looseleaf, updated 1999) (Toronto: Carswell, 1994) at para. 28.1(1).
35. 35Quenneville v. Robert Bosch GmbH, 2017 ONSC 7422 at para 44.
36. 36Bram, supra note 19 at para. 23.
37. 37Ibid at para. 23.
38. 38Ibid at paras. 43, 45.
39. 39cross-examination of Frederiksen (Moore) at p. 103, q. 285.
40. 40Grand Financial Management Inc v. Solemio Transportation Inc., 2016 ONCA 175, at paras 65-74.
41. 41Saadati v. Moorhead, 2017 SCC 28, [2017] 1 S.C.R. 543, at para. 13.
42. 42Rankin (Rankin’s Garage & Sales) v. JJ., 2018 SCC 19, [2018] 1 S.C.R. 587 at para. 19.
43. 43Ramadhin, supra note 25 at para. 5.
44. 44Frederiksen affidavit at para. 9, defendant MR, Tab 3, p. 102.
45. 45Frederiksen affidavit at para. 12, defendant MR, Tab 3, p. 103.
46. 46cross-examination of Frederiksen at p. 80, q. 207; p. 84, q. 220; p. 128, q. 357.
47. 47cross-examination of Frederiksen at p. 65, q. 168.
48. 48Hategan affidavit at para. 51, plaintiff MR, Tab 1, pp. 20-21.
49. 49Hategan affidavit at para. 52, plaintiff MR, Tab 1, p. 21.
50. 50answers to undertakings from the cross-examination of Ms. Moore Frederiksen held 17 September 2019 (“Frederiksen Undertakings”), supplemental motion record of the defendant/plaintiff by counterclaim (“defendant Supp. MR”), Tab 15, p. 244.
51. 51cross-examination of Frederiksen at pp. 65-66, q. 170; Hategan affidavit at paras. 169-171, 173-174, plaintiff MR, Tab 1, pp. 71-74.
52. 52Frederiksen affidavit at para. 36, defendant MR, Tab 3, p. 111.
53. 53cross-examination of Frederiksen at pp. 61-62, q. 162.
54. 54affidavit of Ms. Romero Hategan, affirmed 20 August 2019 (“Hategan affidavit”), plaintiff MR, Tab 1, p. 2 at paras. 3-4.
55. 55Hategan affidavit at para. 9, plaintiff MR, Tab 1, p. 3.
56. 56Hategan affidavit at para. 5, plaintiff MR, Tab 1, p. 2.
57. 57Hategan affidavit at para. 7, plaintiff MR, Tab 1, p. 3.
58. 58Hategan affidavit at para. 7, plaintiff MR, Tab 1, p. 3.
59. 59Hategan affidavit at para. 13, plaintiff MR, Tab 1, p. 5.
60. 60Hategan affidavit at paras. 14-15, plaintiff MR, Tab 1, pp. 5-6.
61. 61Hategan affidavit at para. 19, plaintiff MR, Tab 1, p. 7.
62. 62Frederiksen affidavit at para. 4, defendant MR, Tab 3, p. 101.
63. 63Frederiksen affidavit at para. 5, defendant MR, Tab 3, p. 101.
64. 64cross-examination of Frederiksen at p. 125, q. 348.
65. 65cross-examination of Frederiksen at p. 7, q. 13.
66. 66Frederiksen affidavit at para. 4, defendant MR, Tab 3, p. 101.
67. 67cross-examination of Frederiksen at pp. 35-37, q. 95.
68. 68Frederiksen affidavit at para. 6, defendant MR, Tab 3, p. 102.
69. 69cross-examination of Frederiksen at p. 48, q. 126.
70. 70Hategan FA SOC at para. 56, plaintiff MR, Tab 2.
71. 71Hategan affidavit at para. 2, plaintiff MR, Tab 1, p. 1; Limitations Act, 2002, S.O. 2002, c. 24, s. 4.
72. 72Krouse, supra note 15.
73. 73Joseph v. Daniels, 1986 1106 (BC SC), 4 BCLR (2d) 239 (S.C.) at para. 14.
74. 74Ibid.
75. 75Goldentuler v. Mercedes-Benz, 2013 ONSC 4150, at para. 17.
76. 76factum of Elizabeth Frederiksen Moore Moore at para. 68.
77. 77factum of Elizabeth Frederiksen Moore at paras. 70 – 71 and the factum of Bernie Farber at paras. 31-34.
78. 78Grand Financial, supra note 20 at paras. 71, 72.
79. 79see for example, paras. 56 to 85 of the fresh as amended statement of claim.
80. 80Nasr Hospitality v. Intact Insurance, 2017 ONSC 4136 at paras. 32-35.
81. 81affidavit of E. Hategan, sworn 20 August 2019 at para 156, at Tab 1 of Ms. Hategan’s original motion record.
82. 82Grant v. Torstar Corp, 2009 SCC 61, [2009] 3 S.C.R. 640, at para. 28; Paramount v. Kevin J. Johnston, 2019 ONSC 2910 [Paramount] at para. 50.
83. 83Grant v Cormier-Grant, 2001 3041 (ON CA), 56 O.R. (3d) 215 (C.A.) at paras. 19-24;Thomas v Canadian Broadcasting Corp, 1981 3430 (NWT SC) at p. 308-310.
84. 84Hodgson v. Canadian Newspapers Co. (1998), 1998 14820 (ON SC), 39 O.R. (3d) 235 (Gen. Div.); Patterson v. Plaindealer Co, (1909) 1909 384 (AB KB), 2 Alta LR 29 (ABCA) at para. 4.
85. 85Dhillon v Brar (1991), 1991 11836 (MB QB), 74 Man R. (2d) 12 (Q.B.) at para. 50.
86. 86Jane Doe 464533 v. N.D., 2016 ONSC 541, 128 O.R. (3d) 352 at para. 46.
87. 87Jones v. Tsige, 2012 ONCA 32, 108 O.R. (3d) 241 [Jones v Tsige] at para. 42.
88. 88Lac Minerals Ltd v. International Corona Resources, 1989 34 (SCC), [1989] 2 S.C.R. 574 at p. 608.
89. 89Jones v. Tsige, supra note 90 at para. 87.
90. 90McIlvenna v. 1887401 Ontario Ltd., 2015 ONCA 830 at paras. 23-25.
91. 91Reichmann v. Berlin, [2002] O.J. No. 2732 (S.C.) at para. 13; citing Hill v. Church of Scientology of Toronto, 1995 59 (SCC), [1995] 2 S.C.R. 1130 [Hill] at para. 187.
92. 92Paramount, supra note 83 at para. 67; 122164 Canada v. CM Takacs-Holdings Corp, 2012 ONSC 6338 at para. 22.
93. 93Barrick Gold Corp v. Lopehandia, 2004 12938 (ON CA), 71 O.R. (3d) 416 (C.A.) at para. 31.
94. 94Hill, supra note 87 at paras. 191-194; Paramount, supra note 83 at para. 74.
95. 95Focus Graphite Inc v. Douglas, 2015 ONSC 1104 at para. 60; Paramount, supra note 83 at para. 79.
96. 96Sustainable Development Technology Canada v. Sigurdson, 2018 ONSC 7320 at para. 57; Paramount, supra note 83 at para. 85.