Court File and Parties

COURT FILE NO.: CV-19-442-SR DATE: 20220426

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Olivia Cyr Plaintiff – and – Cassidy LeBlanc Defendant

COUNSEL: Mark A. Radulescu, for the Plaintiff No one appearing for Defendant

HEARD: April 6, 2022, via Zoom

BEFORE: The Honourable Justice D.J. Gordon

Reasons for Decision

[1] This was a motion for default judgment under Rule 19.05, Rules of Civil Procedure. Following submissions from counsel for the plaintiff, I granted the relief sought, with written reasons to follow.

Nature of the Case

[2] This is a defamation action regarding statements published by the defendant on several websites regarding the plaintiff. As hereafter discussed, the statements are clearly defamatory and have caused difficulty for the plaintiff in the community. Most individuals find social media an effective method of communication. Others use it to spread misinformation or to attack others, attempting to do so in an anonymous manner. This latter use has escalated in the past several years as no real effort has been made to address the problem.

Background

[3] The plaintiff resides in the Region of Waterloo. She is employed by two business entities in the community. The defendant resides in the City of Brampton. Her employment, if any, is unknown.

[4] The parties met while attending St. Louis Adult Learning Centre in Kitchener in 2015. Ms. Cyr reports Ms. LeBlanc attending school for less than a week. She has never seen Ms. LeBlanc since.

[5] In March 2019, Ms. Cyr became aware of statements being published about her on several websites. Ms. Cyr says the statements are untrue. Friends of Ms. Cyr reported similar experiences. Ms. Cyr discovered the statements were being made by Ms. LeBlanc. She wrote to Ms. LeBlanc and requested the statements be removed. Ms. LeBlanc refused. Similar requests by counsel for Ms. Cyr were unsuccessful. This action followed.

Litigation History

[6] The Statement of Claim was issued on April 16, 2019. Ms. Cyr sought general, punitive and aggravated damages, mandatory orders to remove the posts and not to further publish defamatory words and costs.

[7] There were difficulties encountered in serving the Statement of Claim on Ms. LeBlanc at her address disclosed on the Ministry of Transportation records. On August 22, 2019, Braid J. granted an order validating service on June 19, 2019, by e-mail. Costs were also awarded in the amount of $1,470.74. Such remain unpaid. The order was served by email on August 24, 2019.

[8] Ms. LeBlanc was noted in default on August 28, 2019 as no Statement of Defence had been served.

[9] On October 31, 2019, Ms. LeBlanc served counsel for Ms. Cyr with a motion, returnable November 14, 2019, seeking to set aside the noting in default and granting leave to serve and file a Statement of Defence. I was assigned as the motions court judge on November 14, 2019. Ms. LeBlanc did not appear. Mr. Radulescu did. In result, I dismissed the motion and awarded costs to Ms. Cyr in the amount of $2,147.79. Such remain unpaid.

[10] This motion for default judgment, on a without notice basis given the absence of a Statement of Defence, was given a placeholder date of January 26, 2022. It was then scheduled for April 6, 2022.

[11] By virtue of the noting in default, as provided in Rule 19.02(1), Ms. LeBlanc is deemed to admit the truth of the allegations of fact made in the Statement of Claim.

Defamatory Statements

[12] The Statement of Claim identifies the statements made by Ms. LeBlanc, set out in greater detail in the affidavit of Ms. Cyr. Between January 2019 and January 2021, Ms. LeBlanc posted on various websites commentary in which she referred to Ms. Cyr as:

a) a “typical racist Kitchener nutjob”; b) an “undercover racist pretending to be liberal”; c) an “ignorant, racist bitch”; d) she was “harassing” Ms. LeBlanc’s colleague; e) she “victimized” Ms. LeBlanc’s colleague; f) she uttered “racial slurs” against Ms. LeBlanc’s colleague as well as “threats of murder”; g) she told Ms. LeBlanc’s colleague to “get out of Canada as her brown ass doesn’t belong here”, and h) she was planning a “vicious racially motivated attack over twitter”.

[13] Ms. LeBlanc published these statements multiple times on the following websites:

a) Thedirty.com; b) Cheaterexposed.us; c) Dirtblot.com; d) Cheaterscaughtonline.com; e) Sheshomewrecker.com; f) Cheatercase.com; g) Badboysreport.com; h) Cheatersdiaries.com; i) Reportedcheaters.co; and j) Cheaterradar.com

[14] A Google search of Ms. Cyr’s name reveals these postings and links to others of a similar nature, none of which were placed by Ms. Cyr.

Subsequent Events

[15] In March 2019, Ms. Cyr contacted Ms. LeBlanc by Instagram, requesting the postings be removed. Rather, the attacks escalated, Ms. LeBlanc sending a response saying:

a) “You have no leg to stand on and neither does…[naming others]. You’re all fucked. You ALL DAMAGED MY CHARACTER AND DESERVE TO BE SUED”; b) “Have fun preparing to pay me if you want the name of the person who wrote your article, I suggest you comply with me”; and c) “Since you don’t wanna listen, I’m not telling you who wrote your post, however, she did tell me that she knows you from way back. That’s all I’m gonna give, once I find your latest house address (your old one is outdated), you’re done. You and those little asswipes can pay me forever”.

[16] On March 12, 2019, Mr. Radulescu sent an e-mail to Ms. LeBlanc demanding the online postings be removed. In response, he received an e-mail from Stella Marone on March 25, 2019. Ms. Marrone identified herself as a “Disability Defence Attorney at Law”, representing Ms. LeBlanc and referring to Ms. Cyr’s claims as “bogus and unfounded”. This rambling letter also refers to a non-existent court action in Brampton and Toronto involving these parties.

[17] Ms. Marrone is not a lawyer according to a search of the Lawyer’s Directory maintained by the Law and Society of Ontario.

[18] The Statement of Claim was delivered to Ms. LeBlanc by e-mail on June 19, 2019. On June 27, 2019, Ms. LeBlanc’s Instagram message says “Fuck these whack ass Kitchener hoes who think the can come for me. Yet again they failed.”

[19] On August 27, 2019, Ms. LeBlanc posted a YouTube video. Ms. LeBlanc is asked “did Olivia Cyr intentionally destroy any evidence to conceal any criminal acts against you”. Ms. LeBlanc answered “yes”.

[20] On September 26, 2019, Mr. Radulescu sent a further e-mail to Ms. LeBlanc. In response, Ms. LeBlanc wrote “I am agreeing to remove the article my accomplice had posted”. Such did not occur.

[21] Ms. LeBlanc attended at the office of Mr. Radulescu on November 19, 2019, reporting the postings being made by her friend “Emily” but based on her description of the events.

Impact on Ms. Cyr

[22] Ms. Cyr reports the statements posted online by Ms. LeBlanc to be false. Such have caused her to fear for her safety and her reputation. Ms. Cyr has been contacted by friends about the postings, some indicating similar negative comments about them. The Cheaterexposed.us postings shows a view count of 134 indicating widespread publication in the community given the total number of sites used by Ms. LeBlanc.

[23] The posted statements have caused significant stress for Ms. Cyr. She feels humiliated and has encountered emotional difficulty and sleep deprivation.

[24] Ms. Cyr has employment with two businesses in the community. Her role involves dealing with the public. Co-workers have reported seeing the online statements about her and have asked questions. Ms. Cyr is concerned about the impact on her employment and has reported the statements to her manager as a precautionary measure.

[25] Ms. Cyr previously completed a college program that would allow her to establish a business. That had been the plan. However, as such a business would involve working with the public, she has decided not to pursue such to avoid further harassment.

[26] A recent TikTok video, posted by Ms. LeBlanc on March 5, 2022, confirms Ms. Cyr’s concerns. The following text appears over the video:

Storytime regarding... Olivia Cy… [naming others] will be coming next week. I unfortunately have to make a trip to Kitchener to receive the police report.

Coming up next week; storytime about the horrors of 2015 #Kitchener #racisms #selflove #exposed #2022 #justice #narcissists.

Analysis of Defamation

[27] The online postings were made anonymously. By virtue of Rule 19.02(1), Ms. LeBlanc is deemed to admit the allegations of fact in the Statement of Claim, including that she published the statements about Ms. Cyr. Further, on a careful review of many postings, Ms. LeBlanc has revealed her identify as the publisher. I so find.

[28] To establish an action for defamation, a plaintiff must prove:

a) the impugned words were defamatory, in the sense they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person; b) the words referred to the plaintiff; and c) the words were published, meaning communicated to at least one person other than the plaintiff.

See: Grant v. Torstar Corp., 2009 SCC 61, at para. 28.

[29] A defamatory statement is one that has a tendency to lower the reputation of the person to whom it refers in the estimation of right-thinking members of society generally, and in particular to cause him or her to be regarded with feelings of hatred, contempt, ridicule, fear, dislike or disesteem. The test is an objective one. See: Awan v. Levant, 2014 ONSC 6890, at para. 80, for a review of the caselaw.

[30] There is no requirement to show the defendant intended to do harm, or even that the defendant was careless. The tort is one of strict liability. See: Grant, supra, at para. 28.

[31] If the plaintiff proves the required elements, the onus shifts to the defendant to advance a defence to avoid liability. See: Grant, supra, at para. 29.

[32] The evidence presented by the plaintiff is overwhelming in meeting the test stated above. Ms. LeBlanc published the statements. The words used, given their ordinary meaning, are defamatory. Informing the community, as Ms. LeBlanc did, that Ms. Cyr was racist and involved in criminal acts would cause an obvious negative impact on Ms. Cyr’s reputation among right-thinking members of society. The postings were seen by many persons. Clearly, by her repeated publications, refusal to take down the postings and absence of an apology, Ms. LeBlanc has participated in a campaign to cause maximum damage to Ms. Cyr.

[33] Without hesitation, I conclude Ms. Cyr has met the test for defamation by Ms. LeBlanc.

Damages and Injunctive Relief

[34] The assessment of damages include consideration of:

a) the plaintiff’s position and standing in the community; b) the nature and seriousness of the defamatory statements; c) the mode and extent of publication; d) the absence or refusal of any retraction or apology; e) the whole conduct and motive of the defendant from publication; and f) any aggravating or mitigating circumstances.

See Awan, supra, at para. 192.

[35] Defamatory statements made on the internet has recognized the universality of that medium and the potential for widespread communication. See: Awan, supra, at para. 193.

[36] Ms. Cyr has made significant effort to advance a career. She completed high school as an adult, attended college to obtain a diploma in a field that would allow her to start a business. Ms. Cyr is employed by two businesses, working with the public. She is clearly an individual of good standing. Ms. Cyr was proactive, reporting the online statements to her employer and thereby preserving her position. She is now reluctant to open a business, being fearful of continued harassment.

[37] Yet, these online attacks to Ms. Cyr’s reputation may still impact further employment and other activities in the community. The internet is used frequently by prospective employers to screen potential employees. The impact may never be known.

[38] Ms. LeBlanc continued her attacks on Ms. Cyr despite this litigation. It has continued to the present. For reasons known only to Ms. LeBlanc, this has turned into a campaign of intimidation and an obvious attempt to impose maximum harm to Ms. Cyr. Simply put, the conduct of Ms. LeBlanc is unacceptable. It must stop.

[39] Punitive damages may be awarded where the defendant’s conduct is so malicious, oppressive and high-handed that it offends the court’s sense of decency. The purpose of punitive damages is not one of compensation; rather it is to punish the defendant for her conduct. See: Hill v. Church of Scientology, [1995] 2 S.C.R. 1130, at para. 196; and Duncan v. Bucktes, 2020 ONSC 3219, at para. 60.

[40] Aggravated damages are awarded when the defendant's conduct has been particularly high-handed or oppressive, increasing humiliation to a plaintiff as a result of defamatory statements. See: Hill, supra, at para. 188; and Duncan, supra, at para. 56.

[41] Both punitive and aggravated damages are appropriate in this case. The defamatory statements were published by Ms. LeBlanc online, and hence, accessible throughout the community. Unlike cases prior to online use, such a widespread publication has increased exposure and, therefore, extended the level of humiliation and embarrassment to innocent persons. Damage awards must take into account the use of such methods.

[42] Ms. LeBlanc attempted, unsuccessfully, to attack Ms. Cyr anonymously and then attempt to blame others. Such conduct invites further sanction. Ms. LeBlanc has continued her campaign against Ms. Cyr, despite this litigation, to the present and expanded her defamatory comments to publish comments as to criminal acts by Ms. Cyr.

[43] Damages are awarded to Ms. Cyr as follows:

a) general damages of $75,000.00; b) punitive damages of $25,000.00; and c) aggravated damages of $25,000.00.

[44] Injunctive relief may be granted when a litigant has established a legal right. Irreparable harm and balance of convenience, while not relevant to the issue, may be considered in determining whether the court ought exercise its discretion by granting the injunction. See: 1711811 Ontario Ltd (Adline) v. Buckley Insurance Brokers, 2014 ONCA 125, at para. 79.

[45] In a similar action for defamation regarding statements published online and where the defendants had been noted in default, a permanent injunction was granted to remove the postings and prohibition further publication. See: Henderson v. Pearlman. I would add that a damage award can only address past publication and an injunction is required to prevent a future spread of defamatory statements.

[46] In result, Ms. LeBlanc is directed to remove the postings containing the defamatory words and she shall not publish, disseminate or broadcast the defamatory words or like or similar effect.

Costs

[47] Mr. Radulescu seeks an award for substantial indemnity costs. Such have been awarded in a similar case where a defendant attempted to publish defamatory statements anonymously and then failed to be involved in the litigation, putting a plaintiff to the additional expense to "ferret out their identities" and to prove their case. See: Theralase Technologies Inc. v. Lanter et al, 2020 ONSC 205, at para 80.

[48] Ms. LeBlanc's conduct was even worse than that of Mr. Lanter. She also attempted to blame her accomplice and communicated with Mr. Radulescu through a fictitious lawyer. Ms. LeBlanc also brought a motion to set aside the noting in default, causing additional expense to Ms. Cyr in responding to same, yet failed to appear in court on her own motion.

[49] In Theralase, supra, the court rejected the plaintiff's request for full indemnity costs, granting costs on a substantial indemnity basis. With respect, I take a different view. The internet is being used to spread misinformation or to attack persons in an anonymous manner. The situation is out of control, little effort being made to address this serious problem. Plaintiffs are put to additional expense in these types of cases and do so to protect their reputation in the community. This should attract full indemnity costs in the circumstances.

[50] However, the request is for substantial indemnity costs, for those matters not addressed on prior motions. Such are fixed in the amount of $9,435.14.

[51] Ms. Cyr is also entitled to pre-judgment interests in the amount of $4,463.01 and post-judgment interests at the prescribed rate.

Conclusion

[52] In result, the judgment is awarded on the terms set out in these reasons.

Gordon, J. Released: April 26, 2022