COURT FILE NO.: CV-21-88228
DATE: 2022/06/24
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ESTHER POST
Plaintiff/Moving Party
– and –
CHELSEA HILLIER
Defendant/Respondent
Andréa Baldy for Plaintiff/Moving Party
No one appearing for Defendant/Respondent
HEARD: June 21, 2022
REASONS FOR JUDGEMENT
Justice Sally Gomery
[1] Esther Post seeks damages, injunctive orders, and costs for false and defamatory tweets that Chelsea Hillier allegedly posted about her in November 2021. Among other things, these tweets stated that Ms. Post, an English instructor at Carleton University, is a sexual predator who has drugged her students. Ms. Post says that Ms. Hillier’s tweets have damaged her reputation and her mental health and have exposed her to harassment and humiliation. As Ms. Hillier has not defended to this lawsuit, Ms. Post moves for default judgment.
[2] For the reasons that follow, judgment is granted. Chelsea Hillier is ordered to pay damages of $85,000 to Esther Post. She must remove any content about Ms. Post on her social media accounts and is permanently prohibited from communicating any further false, defamatory or disparaging statements about Ms. Post. She must also post a retraction and pay Ms. Post costs of $12,483.
Background
[3] A defendant noted in default is deemed to admit the truth of all allegations of fact made in the statement of claim (r. 19.02(1)). The facts alleged must, however, support the cause of action and relief claimed for the plaintiff to obtain judgment (r. 19.06). A plaintiff claiming unliquidated damages must moreover produce supporting evidence of those damages (r. 19.05(2)).
[4] Ms. Post has filed an affidavit sworn June 10, 2022. This affidavit, and the exhibits attached to it, set out her history with Ms. Hillier, the events giving rise to this lawsuit, their impact on Ms. Post, and what has happened since the action was served.
[5] Ms. Post, a PhD in Literature and Cultural Studies, has taught courses in the English department at Carleton University for over 18 years. She also works as a freelance copyeditor and writer. She is married and has two young children.
[6] Ms. Hillier is a former student at Carleton University. She has more recently run unsuccessfully for public office, first in the 2021 federal election and then in the 2022 Ontario election. She is the daughter of Randy Hillier, who for years held a seat in the provincial legislature.
[7] The parties first met in 2008, when Ms. Hillier took two undergraduate English courses taught by Ms. Post, who was then a graduate student. They became friends the following year. They became so close that, in 2014, Ms. Hillier was a member of Ms. Post’s wedding party.
[8] The friendship deteriorated in 2020 over political differences. Both women use Twitter to express political views. In early November 2021, Ms. Post retweeted a thread that criticized anti-vaccine protests at hospitals and other tactics endorsed by Ms. Hillier and her father. In reaction, on November 11, 2021, Ms. Hillier tweeted: “When she secretly dated her student at carleton university we said nothing. But since she’s on a spree i may as well go all in”.[^1] She then sent a series of tweets that featured wedding photos of Ms. Post and her bridal attendants, including Ms. Hillier, and which described Ms. Post as a “violent white nationalist”.
[9] Ms. Hillier’s tweets were automatically sent to everyone who followed her Twitter account. Her account on November 11, 2021, @chelshillier, had over 9,300 followers. After Ms. Post reported the tweets, this account was indefinitely suspended for violating Twitter’s rules against targeted abuse and harassment. A week later, Ms. Hillier began posting from a new account, @chealseahillier6. This account initially had over 1,500 followers.
[10] Using this new account, between November 18 and 21, 2021, Ms. Hillier posted other tweets in which she described Ms. Post as a predator, a “gaslighter”, and an abuser. She repeatedly accused her of having slept with her students and having “fed them Ativan in parking lots”. Ms. Hillier threatened to contact Carleton University with her allegations and included its Twitter account on at least one occasion. Some of her tweets also tagged her father Randy Hillier’s account. Both Mr. Hillier’s account and the university’s account had roughly 50,000 followers at the time.
[11] Ms. Hillier used a photo of Ms. Post’s wedding party as her profile picture on this new account and Ms. Post’s Twitter handle in her profile description. Like her first account, this one was public. This meant that anyone searching for Ms. Post’s name (or in fact anyone who stumbled upon Ms. Hillier’s account for any other reason) would see the tweets.
[12] Other Twitter users responded to Ms. Hillier’s tweets about Ms. Post. They compared Ms. Post to Mary Kay Letourneau or Amber Heard[^2]; expressed shock that Carleton University “would hire such a disgusting professor”; called for her termination or a criminal investigation; and implied that she was sexually promiscuous.
[13] Ms. Post sent a notice of libel to Ms. Hillier on December 7, 2021. Ms. Hillier acknowledged receipt of the notice by email but announced, via her Twitter feed, that she had no intention of removing her tweets.
[14] Ms. Post began this lawsuit on December 23, 2021. Ms. Hillier was served personally with the statement of claim on January 9, 2022. She did not serve a statement of defence and was noted in default. She did, however, mention the lawsuit in many subsequent tweets. She and other Twitter users mocked Ms. Post for taking legal proceedings, saying she was greedy, mentally ill, and unable to care for her children. Ms. Hillier derided Ms. Post for setting up a GoFundMe account to raise money for her legal fees, and suggested the lawsuit was pointless because she had no assets against which a judgment could be executed.
Were Ms. Hillier’s statements about Ms. Post defamatory?
[15] In Grant v. Torstar, 2009 SCC 61, [2009] 3 S.C.R. 640, at para. 28, the Supreme Court of Canada set out a three-part test to prove defamation. Applying this test in this case, Ms. Post must prove that:
a) Ms. Hillier’s words about Ms. Post were defamatory, that is, they would tend to lower Ms. Post’s reputation in the eyes of a reasonable person;
b) the words in fact referred to Ms. Post;
c) the words were published, meaning that they were communicated to at least one person other than Ms. Post.
[16] The tort of defamation is one of strict liability. To succeed in her claim, Ms. Post does not need to prove that Ms. Hillier intended to do harm or that she was careless. Defamatory statements are presumed to be false and to have caused damage to their target. If Ms. Post proves the three parts of the Grant v. Torstar test, the onus shifts to Ms. Hillier to raise a defence by, for example, proving that the statements were true or protected by a privilege.
[17] Ms. Post has proved the three elements of the tort of defamation in this case.
[18] First, the words used by Ms. Hillier are obviously defamatory. It is hard to conceive of a more damaging accusation, for a teacher, than an allegation that she is a sexual predator who drugs her students. If believed, Ms. Hillier’s statements would seriously damage Ms. Post’s reputation in the eyes of her employer, her students, and the world at large. Had Ms. Post done what Ms. Hillier said she had, she could have been criminally charged and she would have lost her job. Based on the responses to Ms. Hillier’s tweets, the statements did in fact cause others to think ill of Ms. Post. They called for her to be fired and criminally investigated.
[19] Second, Ms. Hillier’s words unmistakably referred to Ms. Post. They referred to her by name, disclosed her profession, her employer, and her Twitter handle, and attached photos of her. In her affidavit, Ms. Post says that she was harassed by Twitter users who identified her based on Ms. Hillier’s tweets.
[20] Third, Ms. Hillier’s transmission of her statements via tweets constituted publication. They were seen, at a minimum, by thousands of followers of her accounts. Her account was widely accessible and, because of the way it was set up, it would be seen by anyone who did a search for Ms. Post’s name. Ms. Hillier also used the #MeToo hashtag in some of the tweets, which made it more likely that they would show up in search results. Her tagging of some tweets with her father’s account and Carleton University’s Twitter handle also expanded their reach.
[21] Since Ms. Post has proved the elements of defamation, Ms. Hillier’s defamatory statements are presumptively untrue. Even if this were not the case, Ms. Post says, in her sworn affidavit, that she has never engaged in any of the criminal activities or unethical behaviour alleged by Ms. Hillier. There is nothing to contradict this evidence since Ms. Hillier has not defended to the action.
[22] Since the action is proceeding by default, I do not need to consider whether Ms. Hillier could have raised a defence to it. Later in these reasons, I will consider whether Ms. Post has proved malice, as this will be relevant to the assessment of damages.
What general and aggravated damages is Ms. Post entitled to recover?
[23] Ms. Post seeks $125,000 in general damages and $50,000 in aggravated and punitive damages.
[24] A plaintiff in a defamation case does not need to prove that they suffered a financial loss in order to be awarded damages: Mudford v. Smith, 2009 CanLII 55718 (ON SC), [2009] O.J. No. 4317 (S.C.J.), aff’d 2010 ONCA 395. As Justice Perell observed in Mina Mar Group v. Divine, 2011 ONSC 1172, at para. 13, general damages in defamation cases serve three purposes: (1) to compensate the plaintiff for the distress suffered from the defamation (2) to repair the harm done to their personal and professional reputation; and (3) as a “vindication of reputation”. This third objective, which may perhaps be more easily understood as “restoration of reputation”, shows that general damages for defamation, unlike damages for other wrongs, may have a purely symbolic function.
[25] Damages for defamation vary significantly. Ms. Post directed me to four cases — Emeny v. Tomasewski, 2019 ONSC 3298; Rodrigues v Rodrigues, 2013 QBQB 718; Warman v. Grosvenor (2008), 2008 CanLII 57728 (ON SC), 92 OR (3d) 663; and Bains v. 1420546 Ontario Inc., 2011 ONSC 3686 —where courts have awarded general damages from $50,000 to $250,000. This range underscores how general damages awards depends on the facts of each case.
[26] In Hill v. Church of Scientology, 1995 CanLII 59 (SCC), [1995] 2 SCR 1130, at p. 1203, the Supreme Court of Canada set out factors to consider in assessing damages for defamation. These factors, and the evidence of Ms. Hillier’s actual malice, support a significant damages award in this case.
[27] Ms. Post’s position and standing as a university instructor requires that she be seen as honest and ethical. She is particularly likely to be harmed by allegations that she abused drugs and sexually exploited her students. The potential and actual harm to her reputation and professional standing was made more acute by Ms. Hillier’s addition of Carleton University’s Twitter handle to her posts and her use of Ms. Post’s own Twitter handle.
[28] Statements that a person in a position of authority has engaged in predatory sexual behaviour and administered drugs to someone in their care are, by their very nature, extremely serious.
[29] The dissemination of the defamatory statements on social media compounds the harm inflicted on Ms. Post. Twitter is designed not for an exchange of rational ideas or meaningful debate, but as a means to get the greatest amount of attention or traffic possible, regardless of the truthfulness or value of a tweet’s contents. This design does not mean that its users can escape legal liability for untrue and malicious tweets. On the contrary, users should face greater consequences, in terms of damages, because of the impact of defamation through social media.
[30] In Barrick Gold Corp. v. Lopehandia, 2004 CanLII 12938 (ON CA), at para. 31, Blair JA noted that: “Communication via the Internet is instantaneous, seamless, interactive, blunt, borderless and far-reaching. It is also impersonal, and the anonymous nature of such communications may itself create a greater risk that the defamatory remarks are believed”. Defamatory tweets can quickly become viral and, as has been observed, “the Internet is forever”.
[31] Ms. Hillier’s use of social media to spread her defamatory lies about Ms. Hillier, and steps she took to increase the audience for her tweets, justify a higher damages award. As the Court of Appeal held in Barrick Gold Corp. v. Lopehandi, at para. 34:
Internet defamation is distinguished from its less pervasive cousins, in terms of its potential to damage the reputation of individuals and corporations, by the features described above, especially its interactive nature, its potential for being taken at face value, and its absolute and immediate worldwide ubiquity and accessibility. The mode and extent of publication is therefore a particularly significant consideration in assessing damages in Internet defamation cases.
[32] Ms. Hillier has refused to publish any retraction or apology. She has instead doubled down on her publication of defamatory statements about Ms. Post since being served with the notice of libel. She has displayed contempt not only for Ms. Post, but for the idea that she is obliged to respect the norms of civilized behaviour observed by other members of society.
[33] Finally, I find that, in defaming Ms. Post, Ms. Hillier has acted out of malice, and that this is an aggravating factor. Malice is “commonly understood as spite or ill will towards someone”; Leenen v. Canadian Broadcasting Corporation, (2000), 2000 CanLII 22380 (ON SC), 48 OR (3d) 656 (SCJ), aff’d (2001 54 OR (3d) 612 (CA), at para. 140. Where a defendant makes a defamatory statement for an improper purpose or an ulterior purpose other than the sense of duty, they may be acting out of malice; Leenen, at para. 140. A comment made “solely for the purpose of annoyance or harassment, or in order to harm, injure, or punish someone” is, by definition, malicious; Zoutman v. Graham, 2019 ONSC 2834, at para. 101.
[34] Based on the evidence in this case, Ms. Hillier’s tweet campaign against Ms. Post was motivated by malice. As she stated in one of the first tweets she posted on November 11, 2021: “Can’t take the heat? Get out. You want to f--- with my family? I will f--- with yours “. The content of her tweets, and her efforts to broadcast them as widely as possible, show that she wanted to punish Ms. Post for her criticisms of her father and bully her into silence. Had she sincerely believed that Ms. Post had behaved unethically or criminally, she could have filed a complaint with the police or with her employer, setting out the specific information and evidence to support her allegations. Instead, she tweeted extremely serious, but completely unsubstantiated, accusations. Ms. Hillier’s use of the “#MeToo” hashtag on some posts give the impression that she herself was victimized by Ms. Post. There is again no evidence of this.
[35] Tweets that Ms. Hillier posted in late April 2022 show that she was aware of the impact of her actions. Because they had been close friends, Ms. Hillier knew about Ms. Post’s personal and medical history, which included a panic disorder and a post traumatic stress disorder following a long-term abusive relationship and a violent attempted sexual assault. Ms. Hillier responded to Ms. Post’s message that she was “literally shaking” over the latest tweets with an acknowledgement that Ms. Post’s mental health was fragile, to the point where her former friend might harm herself: “I would post [Ms. Post’s whole message] but then she gonna jump of her balcony and even I dont want that to happen. Poor girl”. When someone else posted a tweet saying that she was laughing when picturing Ms. Post’s reaction, Ms. Hillier tweeted “Me tooooo”. This was overtly malicious.
[36] Ms. Hillier’s conduct attracts not only significant general damages but aggravated damages, based on the criteria set out in McNairn v. Murphy, 2017 ONSC 1678, at para.s. 39-40. Her defamatory statements were repeated over and over again in successive tweets. She accused Ms. Post of harassing and targeting her and suggested that she would make a police complaint or hire a lawyer. This was calculated, in my view, to discourage Ms. Post from pursuing legal action. Her campaign continued after she was sued.
[37] In her affidavit, Ms. Post says that she was humiliated, shocked, hurt, afraid, and angered by the tweets and the response they elicited from other Twitter users. According to a letter from her treating physician, her pre-existing condition and associated symptoms and impairments were “greatly exacerbated as a direct result of the defamatory statements”. Ms. Post has found it extremely difficult to focus on teaching, grading and meeting with her students. She has had severe panic attacks that left her paralyzed with anxiety and unable to function normally, and has doubled or tripled her intake of anti-anxiety medication previously prescribed to her. She has not lost her job, but she is understandably concerned about how the tweets may affect her personal and professional reputation going forward.
[38] I have considered the decisions cited by the plaintiff as well the extensive review of caselaw by Justice Beaudoin in McNairn v. Murphy, at paras. 48 to 55. Ms. Post’s damages are not as significant as those suffered by the plaintiff in Emeny v. Tomaszweski: she has not lost her career or been pushed to consider suicide. She has likewise not received overt bodily threats like the plaintiff in Warman v. Grosvenor (although she has been concerned that Ms. Hillier’s followers could locate her residential address online. Ms. Post’s damages are more similar to, but somewhat less than, those suffered by the plaintiff in Rodrigues v. Rodrigues, who was alleged to have molested a 13 year-old girl. In that case, as here, the “repetition of the libel and the targeted audience were calculated to do the greatest harm”; Rodrigues, at para. 41.
[39] I conclude that Ms. Hillier is liable to pay Ms. Post a combined total of $75,000 in general and aggravated damages.
Is Ms. Post entitled to punitive damages?
[40] Punitive damages are awarded in defamation cases where the defendant’s misconduct is so malicious, oppressive, and high-handed that it offends the norms of decent behaviour. Such damages are not designed to compensate the plaintiff, but to express the court’s outrage at the defendant’s actions; McNairn v. Murphy, at para. 45. Punitive damages are only warded for defamation if the court concludes that general and aggravated damages are insufficient to achieve the goal of punishment and deterrence: McNairn v. Murphy, at para. 46.
[41] I conclude that punitive damages are appropriate in this case. Ms. Hillier’s obvious glee at the damage she was causing to a former friend is both sad and outrageous. She weaponized her Twitter accounts for vengeful and vindictive behaviour. I am particularly disturbed by her repeated publication of Ms. Post’s wedding photos alongside her untrue and libellous statements, her use of tagging to disseminate her statements as widely as possible, and her leveraging of personal information obtained in confidence from a former friend.
[42] I accordingly order Ms. Hillier to pay Ms. Post a further $10,000 in punitive damages.
Is Ms. Post entitled to injunctive relief?
[43] Ms. Post asks the court for the following orders:
(i) An order requiring Ms. Hillier to remove any and all tweets in relation to her;
(ii) An order prohibiting Ms. Hillier from ever again communicating or causing to be communicated any false, defamatory, or otherwise disparaging information in regard to Ms. Post; and
(iii) An order requiring Ms. Hillier to publish a notice on her Twitter page for 60 days, acknowledging that her statements about Ms. Post were false and apologizing “for violating her right to dignity, her honour and reputation”, and for “the harassment and defamation she suffered at the hands of those who believed me”.
[44] I conclude that these orders, with some modifications, are appropriate.
[45] I find that orders requiring Ms. Hillier to remove content and not to communicate any further information about Ms. Post are justified. Considering Ms. Hillier’s aggressive online defamatory campaign, I find that she may very well continue to publish defamatory statements about Ms. Post, in the absence of such orders. Moreover, there is a real possibility that Ms. Post will not be able to recover some or all of the damages awarded, based on Ms. Hillier’s repeated assertion, on social media, that she has no funds. I therefore grant a permanent injunction requiring Ms. Hillier to take down all social media posts regarding Ms. Post, within ten days of the date of this decision, save and except for the retraction that I direct her to publish below. Ms. Hillier is also permanently prohibited from publishing any defamatory, false, or disparaging statements, or encouraging any other person to publish such statements, about Ms. Post.
[46] I also find it appropriate and necessary for Ms. Hillier to post a retraction on her Twitter account for 60 days, acknowledging that her statements about Ms. Post were false and defamatory, and providing a link to this decision. This order is appropriate because Ms. Hillier is a public figure with a significant social media following. This distinguishes this case from Caplan v. Atas, 2021 ONSC 670. Because of her public notoriety both as a political candidate and as the daughter of a long-time MPP, Ms. Hillier has superficial credibility. Some of her followers undoubtedly believed that her malicious and defamatory tweets about Ms. Post were true. It is also possible and likely that some of Ms. Post’s students, friends and family saw the tweets. A retraction will assist Ms. Post in restoring her reputation.
[47] I asked Ms. Post’s lawyer to produce some authority for the requested order for an apology. She referred me to Ottawa-Carlton District School Board v. Scharf, [2007] O.J. No. 3030, and three decisions from the Superior Court of Quebec. The factual situation in ODSB v. Scharf differs significantly from the case at bar. I cannot rely on the Quebec decisions, as they draw on legal principles in the Civil Code of Quebec and the Quebec Charter of Human Rights and Freedoms.
[48] In Lavallée v. Isak, 2021 ONSC 666, at para. 96, my colleague Justice Marc Smith likewise declined to order the defendant to issue an apology. He held that an apology would be insincere.
[49] Although I sympathize with Ms. Post’s desire for a retraction and apology from her former friend, I reach the same conclusion here. I do not see any point in forcing Ms. Hillier to post a statement expressing false regret and an insincere acknowledgement of the harm she has inflicted. Doing so may do more harm than good, as it could incite her followers to hurl further invective at Ms. Post. As this whole episode shows, Ms. Post should not expect to obtain a rational or compassionate response from the Twitterverse. Her vindication is this judgment and a retraction.
Conclusion
[50] Ms. Hillier is ordered to pay Ms. Post $85,000 in damages and to post a retraction for 60 days on her Twitter account as directed at paragraph 46. She must otherwise remove any and all tweets in relation to Ms. Post from her Twitter account and refrain from ever again communicating or causing to be communicated, on any social media platform or by any other means, any false, defamatory, or otherwise disparaging information in regard to Ms. Post.
[51] Ms. Post is also entitled to costs. She argues that substantial indemnity costs are appropriate in this case because Ms. Hillier’s more recent tweets made the case more complex and so caused her to incur additional legal costs.
[52] In two recent internet defamation cases, Manson v. John Doe, 2013 ONSC 628 and Theralase Technologies Inc. v. Lanter, 2020 ONSC 205, plaintiffs have been awarded substantial indemnity costs. In both of these cases, however, the defendants posted anonymously, forcing the plaintiffs to incur costs to uncover their identities and serve them with libel notices and legal proceedings.
[53] I conclude that this is not such an exceptional case as to warrant an award of substantial indemnity costs, and order Ms. Hillier to pay Ms. Post partial indemnity costs of $12,485.
Justice Sally Gomery
Released: June 24, 2022
COURT FILE NO.: CV-21-88228
DATE: 2022/06/24
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ESTHER POST
Plaintiff/Moving Party
-and-
CHELSEA HILLIER
Defendant/Respondent
REASONS FOR JUDGMENT
Justice Sally Gomery
Released: June 24, 2022
[^1]: I have reproduced the texts of the tweets exactly as they appear.
[^2]: Letourneau was a teacher in the U.S. who was convicted of felony rape after having sex with a 12 year-old student. Heard, the former wife of actor Johnny Depp, was found liable for defamation after publishing a newspaper article implying that he had abused her during their marriage.