Court File and Parties
COURT FILE NO.: CV-22-166
DATE: September 30, 2022
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: 40 Days for Life, Plaintiff
AND:
Brooke Dietrich, John Doe, Jane Doe and Persons Unknown, Defendants
BEFORE: MacNeil J.
COUNSEL: P. Horgan and R. Fernandes – Lawyers for the Plaintiff/Responding Party
A. Matas and K. Gordon – Lawyers for the Defendant, Brooke Dietrich/Moving Party
No one appearing for the other Defendants
HEARD: May 31 and June 1, 2022 (via Zoom videoconference)
Reasons for Decision
[1] This case involves an alleged campaign of online harassment and defamation by the Defendants against the Plaintiff, 40 Days for Life (“40 Days”), an international pro-life organization, in October 2021, coinciding with its Fall prayer vigils. 40 Days alleges that the campaign was led and inspired by the Defendant, Brooke Dietrich (“Ms. Dietrich”).
[2] Ms. Dietrich brings this motion pursuant to the provisions of s. 137.1 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“the CJA”), enacted to prevent proceedings that limit freedom of expression on matters of public interest, to dismiss the claim.
THE PARTIES
[3] 40 Days is an American, Texas-based non-profit corporation that engages the public and advocates for an end to abortion. It has nine or more locations in Ontario. Among its activities are 40-day prayer vigils held twice a year, in the Fall and the Spring. These vigils are intended to present “a constant witness”, 12 or 24 hours a day, for 40 days. Each vigil location is run by a group of local volunteers, coordinated by 40 Days.
[4] Ms. Dietrich is an individual with a history of engagement in social justice issues, including menstrual health, reproductive freedom, and pro-choice rights. She believes that access to abortion services is a fundamental freedom. She has a Master’s degree in social justice and community engagement. She uses the social media platform TikTok to express her views on issues that are important to her.
[5] The other Defendants are individuals who have not been identified but are alleged by the Plaintiff to have engaged in tortious conduct on the social media platforms TikTok and/or Reddit and on the Plaintiff’s website.
[6] Ms. Dietrich filed supporting affidavits and was cross-examined on them. 40 Days supported its response to the motion with affidavits from Steven Karlen (“Mr. Karlen”) and Richard Marchak; Mr. Karlen was cross-examined.
BACKGROUND
[7] In the Fall of 2021, Ms. Dietrich saw 40 Days’ anti-abortion protests taking place outside of the Grand River Hospital - Freeport location.
[8] In response, between October 2 and October 29, 2021, she posted approximately 32 videos on TikTok to express her views on reproductive freedom. Some of these videos referred to 40 Days. Ms. Dietrich did not post any further TikTok videos that referred to 40 Days after October 29, 2021.
[9] 40 Days objects to fourteen of Ms. Dietrich’s videos. They can be categorized as follows:
(i) four videos encouraging false sign-ups on 40 Days’ vigil online calendars (dated October 2, 11, 13 and 19, 2021);
(ii) eight videos that 40 Days alleges are defamatory (dated October 6, 10, 16, 18, 19, 21, 23 and 29, 2021);
(iii) two videos displaying contact information of individuals associated with 40 Days (dated October 3 and 6, 2021); and
(iv) one video encouraging shopping cart abandonment (referred to by 40 Days as “inventory depletion”) on 40 Days’ online store (dated October 4, 2021).
[10] Ms. Dietrich contends that her videos express her opinions on 40 Days’ anti-abortion protesting, including by way of acts of digital activism, and encouraged others to engage in the same type of acts if they held the same view as her.
False Sign-Ups – Videos #1, 2, 3 and 4
[11] On October 2, 2021, Ms. Dietrich posted a video inviting pro-choice TikTok users in Canada to go to the 40 Days website and sign up for spots in its Fall campaign of anti-abortion protests and not show up. Ms. Dietrich’s evidence is that the false sign-up (or no-show) protest was inspired by the Trump Rally TikTok Campaign. The October 2nd video went “viral” and reached an audience of at least 308,923. Subsequently, Ms. Dietrich posted three additional videos that encouraged the false sign-up protest idea.
[12] The videos can be described as follows:
Video #1 – Published October 2, 2021 – This 39 second video shows Ms. Dietrich in the forefront with the 40 Days website in the background. There is a “trending audio” applied to the video. Ms. Dietrich demonstrates a false sign-up and invites “TikTok Canada” to sign-up for the 40 Days vigil shifts and then not show up. She ends the video with the comments “because no uterus, no opinions” and “keep your religion off of my body”. The caption below the video says: “Hey, #CanadaTikTok, 40 Days, an #antichoice group has officially started their campaigns across the country to protest abortion services. Please do your thing. #theassignment”. (Video #1 was shared by two other TikTok users who also encouraged TikTok viewers to participate in false sign-ups on 40 Days’ website.)
Video #2 – Published October 11, 2021 – This is a 7 second video featuring a trending effect called “green screen eyes, nose and mouth” by which two eyes and a pair of lips are animated over-top of 40 Days for Life’s website homepage. A trending audio effect was applied that says the words: “First of all, ew. Second of all, ew.” There is also text on the screen: “POV: You remember that 40 Days For Life is still asking for people to sign up to protest abortion.” The video has the caption: “Wouldn’t it be a shame if we all happened to be busy the days we signed up for? #ProChoice #KeepYourReligionOffMyBody #PenningtonsFreedom #keepitsimple”.
Video #3 – Published October 13, 2021 – This 12 second video features Ms. Dietrich mouthing along to a trending audio called “Bye bye”, which includes the sound of laughter followed by the words “bye-bye” with her waving to the camera. The words typed on the screen read: “Me when over 300,000 of you help sign up for anti-choice protest shifts that you have no plans on showing up to so it messes with 40 Days For Life’s schedule.” The caption below the video says: “What? I forgot I had to teach my fish how to swim. Send to a friend to remind them to sign up! #ByeBye #AbortionIsHealthcare #keepitsimple #halloween”.
Video #4 – Published October 19, 2021 – This is an 11 second video that shows the 40 Days website as the background to a video of Ms. Dietrich clapping and dancing. She applied a trending audio of “Holy Spirit, activate. Holy Spirit, activate”. The words on the video screen read: “Me summoning the internet to sign up for anti-abortion shifts that they don’t show up to so it ruins 40 Days For Life goal to fearmonger people out of getting abortions.” The caption below the video reads: “Thinking about doing a live where I talk through a bunch of birth control options and speak through the pros/cons. Would folks join? #ProChoice #HolySpirit #MakeItCinematic #ReproductiveJustice #HumanRights.”
[13] Ms. Dietrich’s evidence is that she, herself, went online to 40 Days for Life’s website to falsely sign-up for protest spots on only one occasion, on October 2, 2021. At that time, she signed up for protest spots for October 2 and 3, 2021. On those dates, she attended and counter-protested in person. Although she made videos referring to the false sign-ups campaign regarding 40 Days subsequent to October 2 and 3, she did not personally engage in such protesting after that time.
[14] Ms. Dietrich states that she understood this kind of no-show protest to be a “legitimate form of digital activism” using a publicly-available online registration format. She believed that “having a small or smaller number of people attending the 40 Days for Life protests would serve to demonstrate that the public does not support 40 Days for Life’s anti-abortion mission”.
[15] The evidence of 40 Days is that when an online vigil calendar receives a certain number of sign-ups for a shift, it appears 100% full. As a result, the false sign-ups campaign dissuaded or prevented actual participants from attending which can and sometimes did defeat 40 Days’ goal of a constant 40-day witness. 40 Days’ email list showed over 3000 “spurious additions” in October 2021 due to newly created website user accounts, and each represented a separate harasser who could falsely sign up for unlimited vigil shifts. Two of the vigil locations had to stop using the 40 Days online calendar and a third had to reduce its use. In many instances, no one showed up to vigil shifts as false sign-ups had filled the calendar.
[16] As a result of the false sign-ups campaign, 40 Days implemented new cybersecurity measures like email and phone verification and Terms of Use for its website. It submits that it spent $14,760.97 USD on these measures.
Defamatory – Videos #4, 5, 6, 7, 8, 9, 10 and 11
[17] 40 Days asserts that eight of Ms. Dietrich’s TikTok videos are defamatory: four depicting her using the “report” feature on Facebook and Instagram to report the 40 Days page; one featuring Ms. Dietrich making a statement that she will dress up as a clown to attend and physically counter-protest anti-choicers; one featuring Ms. Dietrich characterizing 40 Days’ anti-abortion protests as “fearmongering”; one featuring Ms. Dietrich claiming she had witnessed 40 Days’ protesters yelling at cars turning into the hospital; and one featuring Ms. Dietrich stating that anti-choice protesters standing in front of a hospital constitutes harassment.
[18] Video #4 has been summarized above. The other videos can be described as follows:
Video #5 – Published October 6, 2021 – This is a 9 second video. In the background is 40 Days’ website. Ms. Dietrich is seen with her hand in the shape of a sock puppet and the trending audio “Naughty Wackus Bonkus” plays: “What do you think, Wackus Bonkus? Kill them. You naughty Wackus Bonkus.” The screen shows Ms. Dietrich’s computer screen while she navigates to the 40 Days Facebook page and uses the Facebook “report” feature to report the page as harassing. The caption accompanying the video reads: “Harassing folks who are making private healthcare decisions by standing in front of hospitals is not okay. #ProChoice #LiveLaughLove #KeepYourReligionOffMyBody #greenscreen #wackasbonkas”.
Video #6 – Published October 10, 2021 – This video is 9 seconds in length and shows Ms. Dietrich’s phone while she navigates to 40 Days’ Instagram page and then uses Instagram’s “report” feature to report the account for false health information. She applied the trending audio called “mrblocku says no more fortnite”. She mouths the words of the audio and then uses her hand to “hit” the screen. Below the video are the words: “Fearmongering personal healthcare decisions on Instagram is not okay. #NoMoreFortnite #ProChoice #KeepYourReligionOffMyBody #ReproductiveJustice #keepitsimple”.
Video #7 – Published October 16, 2021 – In this 15 second video, the top half of Ms. Dietrich’s face appears upside down at the upper part of the screen, peering downwards, with a trending audio playing. The words on screen read: “If this TikTok gets 20k likes by 10/22 I will dress up in a clown suit to counterprotest the anti-choicers on 10/29.” In smaller print is written: “I really hope it’s a bones day.” The caption below the video reads: “Obviously I will counterprotest regardless but figured I would up the stakes a little bit. Hopefully it’s a bones day. #ProChoice #PantryDayDance #DogDays #BonesDay #AbortionIsHealthcare”.
Video #8 – Published October 18, 2021 – This is a 6 second video. It depicts protesters gathering outside, at the side of a road, and applies a trending audio. Closer up there is a sign that reads: “Pro Choice and Proud”. The words on the screen read: “When it’s a ‘peaceful vigil’ but they spend the entire time yelling at cars turning into the hospital.” The words “My sign ^^” and “Anti-choice folks ^^” are also seen. The caption below the video reads: “How does anyone think this is effective? If anything it’s an attempt to fearmonger and force your opinion onto someone else’s body. #WhatDoesItMean #ProChoice.”
Video #9 – Published October 21, 2021 – This video is 7 seconds long. Ms Dietrich is featured with the “About Overview” page from 40 Days’ website in the background, which is entitled “Helping to end the injustice of abortion”. Ms. Dietrich applied a trending audio and shows herself mouthing along to the words: “What would you do if, when ... I don’t know what you mean there, babes.” The words on the screen read: “Trying to read 40 days for Life (Anti-choice)’s website, ‘mission statement’, and ‘facts’ but it’s full of lies and fake testimonies.” The caption below the video reads: “Your homework: Find a local 40 Days For Life Facebook group and report it as False Health Information! #MakeItCinematic #Babes #ReproductiveJustice #ProChoice #HumanRights”.
Video #10 – Published October 23, 2021 – This is a 10 second video. Ms. Dietrich is featured with a general stock photo of an anti-abortion protest scene in the background. A trending audio is applied from a song called “Face Off” and Ms. Dietrich is shown dancing and mouthing the words to the song. The words displayed on the screen are: “Anti-Choice folks thinking that standing in front of a hospital accomplishes anything but harassment.” The caption below the video reads: “#itsaboutdriveitaboutpower over people’s body and their rights to bodily autonomy. #ProChoice #ReproductiveJustice #prochoicetiktok”.
Video #11 – Published October 29, 2021 – This 8 second video features a trending audio called “Wonders of Magic”. Ms. Dietrich is seen raising her eyebrows, tilting her head, and smiling. The words on the screen read: “What goes through my head when we all report 40 Days for Life (an Anti-Choice) group on Facebook for false health information.” The caption below the video reads: “I dare you. #ProChoice #AbortionIsHealthcare #ProChoiceAndProud #ReproductiveJustice”.
[19] Ms. Dietrich’s evidence is that she used the word “fearmonger” (or “fearmongering”) in the caption of the videos to describe the 40 Days for Life anti-abortion protests because “fearmongering” is a concept that she learned about in her educational studies. She understands it to be a political tool where a person or group uses fear in order to dissuade someone from accepting an alternative point of view.
[20] It appears that Facebook and Instagram did not remove any of the 40 Days content she reported.
Posting of Contact Information – Videos #12 and 13
[21] On October 3, 2021, Ms. Dietrich posted a video that displayed information found on 40 Days’ website regarding the false sign-ups protest and directed individuals to contact Steve Germann (“Mr. Germann”), a 40 Days volunteer, by way of his cell phone number. This video can be described as follows:
Video #12 – Published October 3, 2021 – This is a 32 second video wherein Ms. Dietrich talks to her viewers using a background displaying the 40 Days calendar webpage containing the following message from Mr. Germann: “There are hackers signing up fake times in the calendar. If you want to know whether your proposed time is good, text me [phone number omitted] and I can let you know. Blessings, Steve”. He includes his cell phone number. In the video, Ms. Dietrich states: “So guys, I, uh, think it’s working. I just got this message from a friend. … [She reads out the notice from Mr. Germann.] … I think we should give Steve a call. I don’t know. I’m just saying. He might be bored. Steve, I hope you’re doing well. TikTok, please do your thing. Hypothetically.” The caption below the video reads: “Reply to @growingandgrounded #greenscreenhey #Tiktok do your thing! I think Steve is worried we won’t be showing up to our shifts. #ProChoice #ProChoiceAndProud #NoUterusNoOpinion”.
[22] Ms. Dietrich states that she posted this video because she wanted to encourage the false sign-ups campaign to continue. She contends that she was encouraging people to call Mr. Germann to sign-up for protest spots that they were not going to attend. She thought individuals could call Mr. Germann to express opposition to the anti-abortion protests that he organizes. Ms. Dietrich notes that Mr. Germann continued to post his cell phone number publicly on the 40 Days website thereafter.
[23] 40 Days contends that Mr. Germann received an unknown number of prank phone calls, text messages and voicemails, and that some individuals called him to engage in false sign-ups. It argues that the harassment of Mr. Germann was “severe, constant, and lasted a full month”.
[24] On October 6, 2021, Ms. Dietrich posted a video that displayed a cease-and-desist email she had received from 40 Days’ Chief Operating Officer, Jodie Richter (“Ms. Richter”), and that contained Ms. Richter’s professional email address. (Ms. Dietrich’s own work email address is redacted.) Ms. Dietrich states that the email was sent to her work and she found it to be intimidating and threatening. Since she had no experience with this kind of cease-and-desist letter, she went to TikTok to get advice. The video reached an audience of at least 99,916. The video can be described as follows:
Video #13 – Published October 6, 2021 – This video is 1’14” in length. Ms. Dietrich is featured in the forefront. In the background is the cease-and-desist email from Ms. Richter. Ms. Dietrich is heard saying: “Stop scrolling. I need your help, TikTok. 40 Days for Life has sent an email to my work … [She reads out the cease-and-desist letter.] … So I would love if you could signal boost the heck out of this. And Legal TikTok, if you have any advice for me, please let me know. Um. Keep doing what you’re doing. Don’t let these people protest outside of hospitals who are performing lifesaving services. Enough is enough.” The caption below the video reads: “STOP SCROLLING. 40 Days For Life is threatening immediate legal action because of our work. Please tag, comment, share, repeat watch this! #ProChoice #ProChoiceAndProud #KeepYourReligionOffMyBody #LiveLaughLove #FYP #GettingSued”.
[25] 40 Days submits that, as a result of this video, Ms. Richter’s work email was fraudulently used by the Defendants to subscribe her to at least 29 separate mailing lists such that she received at least 175 spam emails.
[26] Ms. Dietrich contends that she inadvertently disclosed Ms. Richter’s email address by way of this video. She also submits that she never used it to sign up Ms. Richter for any mailing lists and she has no knowledge of other people doing so.
[27] 40 Days alleges that Ms. Dietrich’s urging led her followers to harass other 40 Days’ volunteers as well, some of whom were signed up for inappropriate websites and mailing lists, and some of whom received disturbing emails and apparent threats. Volunteers also received an unknown number of prank calls from unknown Defendants in October 2021.
[28] Ms. Dietrich submits that she has no knowledge of these allegations and that she did not send spam emails, make prank calls, or encourage anyone to engage in such conduct.
Shopping Cart Abandonment – Video #14
[29] On October 4, 2021, Ms. Dietrich posted a video encouraging TikTok users to load up a virtual shopping cart in the 40 Days online store and then refuse to complete the purchase, with the result that the merchandise would be temporarily put on hold. Ms. Dietrich’s evidence is that she was prompted to make this shopping cart abandonment video after reading a TikTok user’s comment posted to her October 2, 2021 video (Video #1) that they were engaging in shopping cart abandonment. She further explained that this endeavour was similar to a Trump 2020 re-election campaign protest.
[30] The video can be described as follows:
Video #14 – Published October 4, 2021 – This 7 second video features Ms. Dietrich in the forefront with the background showing the 40 Days online store. A trending audio clip is used for the video and Ms. Dietrich is seen mouthing along to the words: “I don’t consider myself to be a particularly ethical person. But I am fair.” This text is also printed on the screen. $46,500.00 in value of 40 Days’ products in a shopping cart is displayed behind her image. The caption accompanying the video reads: “Me when I stock my cart full of the 40 Days For Life Merch and press check out when I have no intentions on placing the order. #keepyourreligionoutofmyuterus #keepyourreligionoffmybody #idontconsidermyself”.
[31] Ms. Dietrich states that she engaged in shopping cart abandonment on the one occasion shown in her October 4th video. Her evidence is that she intended that 40 Days’ merchandise be “temporarily unavailable” as a result. While she admitted on cross-examination that this could potentially have a negative financial impact on 40 Days as a seller, she stated that that was not her intent. Based on the comments she received, it quickly became clear that this was not an effective means of protest because the 40 Days online store automatically emptied virtual shopping carts, so she did not post any additional videos promoting this particular campaign.
[32] 40 Days alleges that the Defendants “‘checked out’ thousands or millions of dollars’ worth of 40 Days merchandise through its online store” without completing the purchases thereby hoping to hold up the merchandise.
Proceedings
[33] On February 9, 2022, 40 Days commenced the underlying action against Ms. Dietrich and the other Defendants. In its action, in addition to the 14 videos posted by Ms. Dietrich, 40 Days objects to two other TikTok videos and three Reddit posts published by un-named Defendants. 40 Days claims damages for libel, internet harassment, breach of contract, inducement of breach of contract, fraud, and/or conspiracy.
[34] Ms. Dietrich was served with the statement of claim on February 22, 2022. She has not yet filed a statement of defence.
[35] When served with the claim, Ms. Dietrich was also served with a partial motion record for an interim and interlocutory injunction being sought by 40 Days. The parties attended court to address the injunction motion and, on March 2, 2022, an order was made, setting out terms to last until March 10, 2022, that restrained Ms. Dietrich and the other Defendants from participating in certain specified activities and from publishing certain specified communications relating to 40 Days (“the Interim Injunction Order”).
[36] On March 8, 2022, Ms. Dietrich’s lawyers served a notice of motion for the within s. 137.1 motion.
[37] On March 9, 2022, the parties attended court to address, among other things, Ms. Dietrich’s s. 137.1 motion and 40 Days’ request for an extension of the interim injunction. An order was made, dated March 10, 2022, that set a timetable for Ms. Dietrich’s motion and extended the Interim Injunction Order until further order of the Court.
[38] If Ms. Dietrich is successful in having the action dismissed under s. 137.1, she seeks that it be dismissed in its entirety, as against all of the Defendants; and, if successful, she further seeks an order terminating the Interim Injunction Order and an order requiring 40 Days to remove from its website and social media accounts all copies of the related court endorsements and orders, and all associated blog posts and articles.
40 Days’ Affidavit Evidence
[39] Counsel for Ms. Dietrich argued, as a preliminary issue, that the affidavit evidence of Mr. Karlen (“the Karlen Affidavit”), as filed by 40 Days, is improper hearsay and should be given little or no weight in the circumstances. (No separate motion to strike out the affidavit, or any specific parts of it, was brought.)
[40] Ms. Dietrich’s counsel argued that large portions of the Karlen Affidavit are improper rhetorical argument or legal argument which has no place in an affidavit and is inadmissible. Further, she contended that the evidence of harm allegedly suffered by 40 Days is a central issue on the motion and the “best evidence” rule still applies, yet there was no evidence from individuals with direct knowledge and 40 Days did not explain why they were not able to provide sworn evidence themselves.
[41] Rule 39.01(4) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, permits hearsay evidence to be admitted on a motion if the source of the information and the fact of belief are specified in the affidavit.
[42] In the circumstances, I find that Mr. Karlen, as the Campaign Director of 40 Days for Life, was an appropriate person to provide evidence in support of the Plaintiff’s position on the issues to be addressed on the motion. Given the nature of his position, he had personal knowledge of many of the statements contained in his affidavit and, where he obtained information from others, he set out the source of his information and provided certain related communications in response to undertakings given at his cross-examination that indicate the source of his information. I am of the view that the fact of his belief in the information he obtained from others was apparent from the affidavit.
[43] I find that Mr. Karlen’s affidavit meets the bare requirements of r. 39.01(4): see Di Franco v. Bueckert, 2020 ONSC 1954, at paras. 24-25. Accordingly, I am satisfied that the Karlen Affidavit is admissible as evidence for the purposes of the motion before me.
ISSUES
[44] The issues to be determined on this motion are:
Should 40 Days’ action be dismissed pursuant to s. 137.1 of the CJA?
Should 40 Days pay damages to Ms. Dietrich pursuant to s. 137.1(9) of the CJA?
Should Ms. Dietrich’s medical records be sealed?
1. Should 40 Days’ action be dismissed pursuant to [s. 137.1](https://www.canlii.org/en/on/laws/stat/rso-1990-c-c43/latest/rso-1990-c-c43.html) of the [CJA](https://www.canlii.org/en/on/laws/stat/rso-1990-c-c43/latest/rso-1990-c-c43.html)?
[45] As the Supreme Court of Canada explained in 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, 157 O.R. (3d) 79, at para. 16, s. 137.1 of the CJA is a means by which lawsuits “that unduly limit expression on matters of public interest” are screened out pre-trial.
[46] Section 137.1(3) reads:
On motion by a person against whom a proceeding is brought, a judge shall, subject to subsection (4), dismiss the proceeding against the person if the person satisfies the judge that the proceeding arises from an expression made by the person that relates to a matter of public interest.
[47] Section 137.1(4) provides that a judge shall not dismiss a proceeding under subsection (3) if the responding party satisfies the judge that,
(a) there are grounds to believe that,
(i) the proceeding has substantial merit, and
(ii) the moving party has no valid defence in the proceeding; and
(b) the harm likely to be or have been suffered by the responding party as a result of the moving party’s expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression.
[48] The term “expression” is defined in s. 137.1(2) to mean: “any communication, regardless of whether it is made verbally or non-verbally, whether it is made publicly or privately, and whether or not it is directed at a person or entity”.
[49] In Pointes, at para. 38, the Supreme Court of Canada was clear that a motion under s. 137.1 is distinct from a motion to strike or a motion for summary judgment. Both of those procedures remain available to a defendant.
(i) Threshold Burden – Section 137.1(3)
[50] The moving party (defendant) bears the initial onus of proving, on a balance of probabilities, that:
(i) the proceeding arises from an expression made by the defendant; and
(ii) the expression relates to a matter of public interest.
[51] If the moving party does not satisfy this threshold burden, the motion must be dismissed.
[52] In Pointes, at paras. 27-29, the Supreme Court of Canada discussed what is meant by “relates to a matter of public interest” and held that the applicable principles are as set out in Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640, explaining:
27 … The expression should be assessed “as a whole”, and it must be asked whether “some segment of the community would have a genuine interest in receiving information on the subject” (paras. 101-2). While there is “no single ‘test’”, “[t]he public has a genuine stake in knowing about many matters” ranging across a variety of topics (paras. 103 and 106). …
28 The statutory language used in s. 137.1(3) confirms that “public interest” ought to be given a broad interpretation. Indeed, “public interest” is preceded by the modifier “a matter of”. This is important, as it is not legally relevant whether the expression is desirable or deleterious, valuable or vexatious, or whether it helps or hampers the public interest – there is no qualitative assessment of the expression at this stage. The question is only whether the expression pertains to any matter of public interest, defined broadly. The legislative background confirms that this burden is purposefully not an onerous one.
29 Nonetheless, expression that relates to a matter of public interest must be distinguished from expression that simply makes reference to something of public interest, or to a matter about which the public is merely curious. Neither of the latter two forms of expression will be sufficient for the moving party to meet its burden under s. 137.1(3) (see Torstar, at para. 102). [Emphasis in original.]
[53] A matter of public interest has also been described as one about which the public has substantial concern because it affects the welfare of citizens or to which public controversy has attached: see Grist v. TruGrp Inc., 2021 ONCA 309, 165 O.R. (3d) 171, at para. 18.
[54] Here, the parties agree that advocacy about abortion is a matter of public interest. 40 Days disputes, however, that the impugned videos relate to a matter of public interest. It argues that the only information the videos convey is how to disrupt and sabotage 40 Days and that there is no genuine public interest in knowing this. Information about online sabotage tactics neither affects citizens’ welfare nor is it a matter of public controversy. 40 Days argues that these posts are not comments on the abortion issue. At best, some of the videos “make reference” to the issue by calling 40 Days “anti-abortion” but 40 Days argues such reference is insufficient.
[55] Ms. Dietrich submits that her TikTok videos constitute her using her voice, and the means available to her, to protest and engage in the debate on reproductive justice and anti-abortion protesting outside hospitals. In the videos, Ms. Dietrich communicates by way of spoken word, written word, physical movement, and by the use of visual displays and music.
[56] After considering what the expression is really about, I am of the view that the nature of Ms. Dietrich’s expression communicated by way of the impugned videos, as a whole, relates broadly to the counter-protesting of anti-abortion groups, like 40 Days, and to her efforts to stop anti-abortion protesting outside hospitals that provide abortion services. I am satisfied that this is a matter of public interest since at least some segment of the community, including individuals who have opinions about the provision of abortion services and/or those who wish to procure such services, would be interested in receiving information on the issue. I also accept Ms. Dietrich’s argument that the fact that the Safe Access to Abortion Services Act, 2017, S.O. 2017, c. 19, Sched. 1, was enacted shows that the topic is a matter of public interest.
[57] Accordingly, I find that the threshold requirement set out in s. 137.1(3) has been met.
(ii) Merits-Based Hurdle – Section 137.1(4)(a))
[58] Since Ms. Dietrich (moving party) has met the threshold requirement under s. 137.1(3), the analysis moves to s. 137.1(4)(a) and the onus shifts to 40 Days (responding party) to satisfy the Court that there are grounds to believe that:
(i) the proceeding has substantial merit; and
(ii) the defendant has no valid defence.
[59] The standard of “grounds to believe” requires “that there be a basis in the record and the law – taking into account the stage of litigation at which a s. 137.1 motion is brought” and requires “something more than mere suspicion, but less than … proof on the balance of probabilities”: Pointes, at paras. 39-40. I understand this to mean that I do not need to be persuaded on a balance of probabilities but I must have more than a mere suspicion.
[60] The Supreme Court of Canada explained the exercise as follows in Pointes, at para. 59:
… [T]he motion judge must first determine whether the plaintiff’s underlying claim is legally tenable and supported by evidence that is reasonably capable of belief such that the claim can be said to have a real prospect of success, and must then determine whether the plaintiff has shown that the defence, or defences, put in play are not legally tenable or supported by evidence that is reasonably capable of belief such that they can be said to have no real prospect of success. In other words, “substantial merit” and “no valid defence” should be seen as constituent parts of an overall assessment of the prospect of success of the underlying claim.
[61] The motion judge is not adjudicating the underlying proceeding itself. The motion judge is only deciding if the plaintiff has presented “a legitimate claim” for which it should not be “unduly deprived of the opportunity to pursue”: Pointes, at para. 46.
[62] In Subway Franchise Systems of Canada, Inc. v. Canadian Broadcasting Corporation, 2021 ONCA 26, at paras. 55-56, the Ontario Court of Appeal provided further guidance and described the approach to be taken at this stage of the inquiry in this way:
55 Given the early stage of the proceeding, that damage assessment can be an ongoing process, and that such motions are meant to weed out clearly defective claims, there is only a limited assessment of the evidence from the motion judge's perspective: Pointes, para. 39. If the motion record raises serious credibility issues or inferences to be drawn from competing primary facts, the motion judge must avoid taking a "deep dive" into the ultimate merits and instead, engage in a much more limited analysis: Pointes (CA), at para. 78.
56 “A determination that a defence 'could go either way' in the sense that a reasonable trier could accept it or reject it, is a finding that a reasonable trier could reject the defence.”: Bondfield Construction Company Limited v. The Globe and Mail Inc., 2019 ONCA 166, at para. 15.
[63] Thus, if it is determined that a defence “could go either way”, the responding party will have met its burden.
[64] The s. 137.1(4)(a) analysis must be applied to each of the causes of action asserted by 40 Days against Ms. Dietrich. I now address them below, in turn.
Defamation
[65] The Supreme Court of Canada discussed the necessary elements to find a publication defamatory in the seminal case of Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640, at para. 28, as follows:
A plaintiff in a defamation action is required to prove three things to obtain judgment and an award of damages: (1) that the impugned words were defamatory, in the sense that they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person; (2) that the words in fact referred to the plaintiff; and (3) that the words were published, meaning that they were communicated to at least one person other than the plaintiff. If these elements are established on a balance of probabilities, falsity and damage are presumed, though this rule has been subject to strong criticism: see, e.g., R. A. Smolla, “Balancing Freedom of Expression and Protection of Reputation Under Canada’s Charter of Rights and Freedoms”, in D. Schneiderman, ed., Freedom of Expression and the Charter (1991), 272, at p. 282. … The plaintiff is not required to show that the defendant intended to do harm, or even that the defendant was careless. The tort is thus one of strict liability.
[66] With respect to the third element of defamation, there is no dispute that all of the impugned videos published by Ms. Dietrich were communicated to at least one person other than the plaintiff. The evidence is that her TikTok videos were publicly disseminated online, with one that she herself stated went “viral”.
[67] The remaining two elements must be considered then in light of the parties’ positions.
Position of 40 Days
[68] 40 Days asserts that Videos #4, 5, 6, 7, 8, 9, 10 and 11, as described above, are defamatory posts in that they accuse it of engaging in harassment, spreading false information, and fearmongering. It alleges that the “sting” of the allegation that 40 Days yells and harasses with the intention of frightening people is particularly damaging to its reputation “as a peaceful advocate for social change”.
[69] Regarding Videos #4, 5, 6, 9 and 11, I am of the view that these can be considered to be potentially defamatory as:
(i) they specifically refer to 40 Days; and,
(ii) they allege that 40 Days fearmongers, harasses and/or publishes “lies and fake testimonies” and “false health information” and the use of these negative words and descriptors would tend to lower the reputation of 40 Days in the eyes of a reasonable person.
[70] 40 Days also asserts that Ms. Dietrich’s “reporting” to Facebook and Instagram, and then publishing the same statements publicly through Videos #5, 6, 9 and 11, can be considered defamatory: see Lavallee et al. v. Isak, 2021 ONSC 6661. I am not persuaded, however, that Ms. Dietrich using the “report” feature to report 40 Days to Facebook and Instagram is defamatory as such a communication constitutes a direct request to the social media provider to consider whether the reported post is inappropriate or not, according to that platform’s terms. While indiscriminately reporting a party may constitute an improper use of the report feature if, in fact, there is nothing objectionable about the party’s content, that is for the social media provider to address. I am also not satisfied that the “reporting” aspect of the videos would tend to lower 40 Days’ reputation in the eyes of a reasonable person.
[71] With respect to Videos #7, 8 and 10, relating to dressing up as a clown, the roadside protesters, and the protesters standing in front of a hospital, I am not satisfied that, in fact, 40 Days is the party being referred to. I am also not persuaded that the words used would tend to lower 40 Days’ reputation in the eyes of a reasonable person.
[72] Accordingly, I conclude that there are grounds to believe that the claim in defamation has substantial merit as it relates to Videos #4, 5, 6, 9 and 11 only.
[73] In light of this conclusion, I need only address whether there is a valid defence to the defamation claim respecting these five videos.
Position of Ms. Dietrich
[74] Ms. Dietrich relies on the defences of truth and/or fair comment, both of which require a factual basis. She argues that all of the allegedly defamatory videos involve her expressing her opinion on abortion and the videos were posted on her page under the disclaimer “Opinions are my own”. She argues that her views – that 40 Days spreads false health information or that its protests are harassing or fearmongering – are views that a person could honestly express based on the evidence adduced on the motion. She submits that she has identified numerous examples of posts on the 40 Days Facebook page, Instagram page and website which can fairly lead to the characterization that 40 Days engages in harassing conduct and spreads “misleading” information about abortion. For example, she asserts that, with respect to Video #5, she reported the 40 Days Facebook page because of its September 29, 2021 post which reads: “Steve in Stockport, England said finding vigil participants is difficult. Some people even deliberately avoid him to dodge his recruitment efforts! But Steve isn’t deterred. He continues building his campaign – one prospective participant at a time.” Ms. Dietrich’s evidence is that she believes the conduct that 40 Days is advocating for in this Facebook post constitutes harassment. As it relates to Video #6, Ms. Dietrich’s evidence is that she reported 40 Days to Instagram because of posts and stories that she had seen in which it makes claims that she believes are misleading, including an October 7, 2021 post that she says suggests “that medical professionals tried to force a woman to get an abortion by extorting her regarding treatment of an unrelated medical condition unless she agreed to get an abortion”. Respecting Video #9, Ms. Dietrich states that she posted this video because it is her opinion that the 40 Days website contains false or misleading statements about abortion, which is a healthcare service. And, with respect to Video #11, Ms. Dietrich’s evidence is that she posted this video because it is her opinion that the 40 Days Facebook page promotes misleading information about abortion, a healthcare service, and she believed it appropriate to use the “report” feature to register this concern. Ms. Dietrich further submits that she has identified numerous instances where 40 Days’ protesters were not peaceful or where they engaged in harassing behaviour.
[75] Ms. Dietrich also ties her expression and her reason for communicating through the impugned TikTok videos to the Safe Access to Abortion Services Act, 2017 which she says was enacted to create safe access zones outside of hospitals in order to “avoid the fear, intimidation, and harassment associated with anti-abortion protesting”. She argues that, accordingly, there is a basis in truth for her conclusions that 40 Days’ anti-abortion protests constitute harassment or fearmongering.
Discussion
[76] With respect to Ms. Dietrich’s allegations that 40 Days has engaged in harassing conduct, 40 Days contends that there are a number of reasons to believe that these are false. For instance, it argues that Ms. Dietrich’s claim that the 40 Days Facebook post, describing a volunteer being avoided by potential participants he is trying to recruit, depicts harassment is implausible. As it relates to her October 10, 2021 report of a 40 Days Instagram post as being “false information”, 40 Days submits that, on cross-examination, Ms. Dietrich admitted that she had and has no personal knowledge of the incident described involving the woman seeking medical care, and so she cannot properly claim that it is false. With respect to Ms. Dietrich’s urgings in her October 21 and 29, 2021 videos, 40 Days submits that Ms. Dietrich stated her contention that 40 Days is spreading “false health information” arises from it calling abortion a “tragedy” but that she conceded, on cross-examination, that this was a pro-life position not health information. Further, 40 Days submits that Ms. Dietrich did not provide any evidentiary basis for her describing 40 Days as “fearmongering”. Accordingly, 40 Days contends that Ms. Dietrich does not have a valid defence on the basis of truth or fair comment.
[77] 40 Days also argues that Ms. Dietrich acted with malice in creating the videos and that this defeats the defence of fair comment. It submits that statements made by Ms. Dietrich, including “so it messes with 40 Days for Life’s schedule”, “so it ruins 40 Days for Life goal to fearmonger”, “TikTok, please do your thing”, “don’t let these people protest outside of hospitals”, and “enough is enough”, demonstrate this malicious intent. It relies on Zoutman v. Graham, 2019 ONSC 2834, aff’d 2020 ONCA 767, at para. 101, wherein it was held that a “[c]omment that is made solely for the purpose of annoyance and harassment, or in order to harm, injure or punish someone will amount to malice” and that a defence of fair comment is defeated by a finding of malice.
[78] The Supreme Court of Canada adopted the following definition of malice in Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC), [1995] 2 S.C.R. 1130, at para. 145:
Malice is commonly understood, in the popular sense, as spite or ill‑will. However, it also includes, as Dickson J. (as he then was) pointed out in dissent in Cherneskey, supra, at p. 1099, "any indirect motive or ulterior purpose" that conflicts with the sense of duty or the mutual interest which the occasion created. See, also, Taylor v. Despard, 1956 CanLII 124 (ON CA), [1956] O.R. 963 (C.A.). Malice may also be established by showing that the defendant spoke dishonestly, or in knowing or reckless disregard for the truth. See McLoughlin, supra, at pp. 323‑24, and Netupsky v. Craig, 1972 CanLII 19 (SCC), [1973] S.C.R. 55, at pp. 61‑62.
[79] Ms. Dietrich denies that she was motivated by malice. She reiterates that she made the videos to express her views and to engage in advocacy to counter 40 Days’ advocacy, and that engaging in advocacy does not constitute malice.
[80] 40 Days did not object to Ms. Dietrich’s statements about reproductive justice or about the appropriateness of anti-abortion groups protesting outside of abortion facilities. Rather, 40 Days identified particular statements made by Ms. Dietrich that refer to it as harassing, fearmongering, and spreading lies and false health information.
[81] I find that 40 Days has raised significant questions about the validity of Ms. Dietrich’s defences, including what actually informed her decisions (at the time of creating the impugned videos) to express or describe 40 Days as harassing and fearmongering, and to state that its “website, ‘mission statement’, and ‘facts’” is “full of lies and fake testimonies”. There is no evidence before me that the Safe Access to Abortion Services Act, 2017 was enacted as a result of the conduct of 40 Days specifically. I find that 40 Days has provided an arguable case that Ms. Dietrich may have communicated in a malicious or reckless manner or both.
[82] In my opinion, there is a basis in the record to find that Ms. Dietrich’s defences of truth and/or fair comment “could go either way”.
[83] Thus, 40 Days has met its onus as it relates to its defamation claim respecting Videos #4, 5, 6, 9, and 11.
Internet Harassment
[84] The tort of internet harassment was recognized in Caplan v. Atas, 2021 ONSC 670. The tort will be made out “where the defendant maliciously or recklessly engages in communications conduct so outrageous in character, duration, and extreme in degree, so as to go beyond all possible bounds of decency and tolerance, with the intent to cause fear, anxiety, emotional upset or to impugn the dignity of the plaintiff, and the plaintiff suffers such harm”: Caplan, at para. 171.
[85] The Court in 385277 Ontario Ltd. v. Gold, 2021 ONSC 4717, also acknowledged the “burgeoning tort of online harassment”. In that case, at para. 57, Myers J. noted:
The law has recognized for many years the particular threat that internet harassment poses to a person’s reputation and well-being. In 2004, in Barrick Gold Corp. v. Lopehandia, 2004 CanLII 12938 (ON CA), at para. 34, Blair JA wrote:
…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.
[86] And in 2110120 Ontario Inc. o/a Cargo County v. Buttar, 2022 ONSC 1766, the Court appears to have accepted the possibility of a tort claim proceeding as a result of the defendants’ “manipulation of social media to deliberately negatively impact” the corporate plaintiff’s business, but did not expressly rule on it.
Position of 40 Days
[87] 40 Days contends that Ms. Dietrich’s TikTok videos encouraged and resulted in thousands of viewers participating in false sign-ups, many others engaging in shopping cart abandonment, and the harassment of at least eight individuals associated with the organization. It argues that this constituted a campaign to “harass, harry and molest” 40 Days “by repeated and serial publications”: Caplan, at para. 168. It alleges that Ms. Dietrich was malicious and/or reckless in her conduct, that her stated intent was to ruin or impede 40 Days’ ability to organize its vigil protests, and that her efforts were successful in many respects.
[88] 40 Days further alleges that Video #12, wherein Ms. Dietrich displayed Mr. Germann’s cell number and encouraged her viewers to “give Steve a call” and commented “TikTok, please do your thing. Hypothetically”, and Video #13, wherein Ms. Richter’s email address is displayed and Ms. Dietrich is heard saying, “Keep doing what you’re doing. Don’t let these people protest outside of hospitals who are performing lifesaving services. Enough is enough”, served to incite some viewers to deliver harassing or threatening messages to a number of 40 Days’ volunteers and staff. Among the communications sent to 40 Days was an unknown Defendant signing up for a protest spot using a knife emoji symbol instead of a name.
Position of Ms. Dietrich
[89] Ms. Dietrich presents two defences to this cause of action. First, she argues that a corporation cannot sue for internet harassment as it cannot suffer the fear, anxiety, emotional upset or harm to dignity that are key elements of the tort. Second, Ms. Dietrich argues that her conduct does not meet the threshold of outrageous conduct as existed in Caplan.
[90] With respect to the alleged internet harassment of Mr. Germann and Ms. Richter, specifically, Ms. Dietrich submits that Videos #12 and #13 do not meet the high bar of extreme conduct required to establish the tort, and the hearsay evidence led by 40 Days fails to establish such conduct. She submits that none of the allegedly harassing conduct was committed by her. Her only conduct was to make the two videos, neither of which specifically encourage harassment. Ms. Dietrich argues that there is no evidence to establish the requisite intent as she never intended for anyone to harass Mr. Germann or Ms. Richter. She also contends that, while Ms. Richter received spam emails, there is no evidence she found it intimidating. Since there was no harm arising from Videos #12 and 13, she submits the tort must fail.
[91] With respect to the knife emoji symbol communication and the prank phone calls made to 40 Days’ associates, Ms. Dietrich states that she has no knowledge of these. She argues that 40 Days has not led any evidence directly linking her to this conduct by any of the other Defendants.
Discussion
[92] The evidence appears to establish that some of Ms. Dietrich’s TikTok videos served to impugn the reputation of 40 Days and that some of her videos and accompanying online communications served to encourage and rally others to do acts to negatively impact 40 Days’ activities. I am of the view that there are grounds to believe that the claim based on the tort of internet harassment has substantial merit.
[93] With respect to Ms. Dietrich’s first defence that the tort of internet harassment is not available to a corporation, the jurisprudence continues to develop with decisions such as Caplan, 385277 Ontario Ltd., and Buttar. I am not satisfied that the law, in its current state, definitively precludes a corporation from prosecuting a tortious claim of internet harassment if it has suffered harm and disruption as a result of online conduct. Accordingly, at this juncture, I am not prepared to find that 40 Days’ claim for internet harassment has no reasonable prospect of success simply because it is a corporation.
[94] I am of the view that Ms. Dietrich’s defence of simply denying that these videos amount to internet harassment “could go either way”.
[95] Accordingly, in my opinion, 40 Days has met its onus in respect of this claim.
Breach of Contract and Inducing Breach of Contract
[96] The essential elements of breach of contract are the existence of a contract and its wrongful breach.
[97] To establish the cause of action of inducing breach of contract, a plaintiff must prove the following elements:
an enforceable contract;
knowledge of the existence of the contract;
an intentional act on the part of the defendant to cause a breach of contract;
wrongful interference with the contract; and
damages.
Position of 40 Days
[98] 40 Days relies on its website’s Terms of Use and its Statement of Peace to ground its breach of contract and inducing breach of contract claims. The Terms of Use stipulates that website users agree not to use the website fraudulently, unlawfully, or to interfere with 40 Days’ pro-life mission. The Statement of Peace includes a term that the person signing up for a calendar timeslot agrees that they “will not intentionally cause harm”. 40 Days argues these are valid and enforceable contractual documents to which all users signing up for vigils – including those falsely signing up – had to agree.
[99] 40 Days submits that the Statement of Peace existed at all material times, including when Ms. Dietrich falsely signed up for vigil shifts.
[100] With respect to the Terms of Use, 40 Days argues that registered users of its online vigil calendar had to agree to the Terms of Use as of October 13, 2021 and, by October 18, 2021, the Terms of Use had been linked from the footer of its website such that a user browsing the website would implicitly accept the Terms of Use. 40 Days argues that courts have accepted “browse-wrap” and “click-wrap” terms of use of websites to be enforceable contracts, and injunctive relief has been granted to prohibit breaches: see e.g. Century 21 Canada Limited Partnership v. Rogers Communications Inc., 2011 BCSC 1196, at para. 141; Canadian Real Estate Assoc. / Assoc. Canadienne d'immeuble c. Sutton (Québec) Real Estate Services Inc., 2003 CanLII 22519 (QC CS).
[101] 40 Days asserts that Ms. Dietrich, personally, falsely signed up for vigil shifts that required agreement with the Statement of Peace and that she used 40 Days’ website after the Terms of Use were implemented. It further argues that Ms. Dietrich induced her viewers to breach the Terms of Use and Statement of Peace through false sign-ups, that she made posts on October 13 and 19, 2021 promoting false sign-ups after the Terms of Use were implemented, and that numerous viewers did breach said terms.
[102] 40 Days contends that Ms. Dietrich’s videos urging users to “report” 40 Days’ Facebook pages also constitutes a breach of the Terms of Use as it uses 40 Days’ website in an attempt to impede its pro-life mission.
Position of Ms. Dietrich
[103] Ms. Dietrich submits that the evidence is clear that when she personally engaged in the false sign-up protest on October 2, 2021 and the shopping cart abandonment protest on October 4, 2021, there were no Terms of Use on 40 Days’ website. Thus, she cannot be found to have breached the Terms of Use. Ms. Dietrich also argues that she was not aware of the Terms of Use at the material times and, further, that the terms relied upon by 40 Days within that document are not enforceable as a contract (e.g., not to interfere with 40 Days’ pro-life mission).
[104] With respect to the Statement of Peace, Ms. Dietrich argues that 40 Days’ statement of claim does not make reference to or contain any allegation regarding the Statement of Peace as it relates to the breach of contract claim. Accordingly, since the Statement of Peace was not pleaded, and since s. 137.1(6) of the CJA provides that 40 Days cannot amend its claim to prevent or avoid dismissal without a court order, the Statement of Peace cannot properly ground 40 Days’ action for breach of contract or inducing breach of contract.
Discussion
[105] Since there were no Terms of Use on the 40 Days website on the dates when Ms. Dietrich, herself, engaged in the false sign-up and shopping cart abandonment campaigns, I find that she cannot be found to have breached the Terms of Use.
[106] With respect to the claim of inducing breach of contract, this claim requires a defendant to be aware of the existence of the contract and, based on the record before me, Ms. Dietrich was clear in her evidence that she did not become aware of the existence of the Terms of Use until she read the Karlen Affidavit served in response to this motion. Thus, her defence of lack of knowledge has a real prospect of success.
[107] I accept Ms. Dietrich’s argument that the Statement of Peace cannot support this cause of action since it was not pleaded in the statement of claim.
[108] I conclude that 40 Days’ claims of breach of contract and inducing breach of contract do not have substantial merit and that Ms. Dietrich’s defences have a real prospect of success. Accordingly, 40 Days has not met its onus in respect of this particular claim.
Fraud
[109] The Supreme Court of Canada confirmed in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 87, that the tort of civil fraud has four elements, which must be proven on a balance of probabilities: (1) a false representation by the defendant; (2) some level of knowledge of the falsehood of the representation on the part of the defendant (whether knowledge or recklessness); (3) the false representation caused the plaintiff to act; and (4) the plaintiff’s actions resulted in a loss.
Position of 40 Days
[110] 40 Days alleges that the false sign-up campaign and the shopping cart abandonment campaign constitute fraud. With respect to the false sign-ups, specifically, it argues that the point of the false sign-ups was knowingly to give a false representation to 40 Days that those signing up would attend its prayer vigils. It submits that the individuals participating in the false sign-ups showed intent to deceive. Ms. Dietrich and the other Defendants engaged in thousands of false sign-ups and caused 40 Days to mark vigil spots as “full” that would otherwise have been available to bona fide volunteers. It submits that volunteers were dissuaded and/or prevented by the Defendants’ false sign-ups from attending the vigils given the appearance that calendars were 100% full.
Position of Ms. Dietrich
[111] Ms. Dietrich argues that, in its statement of claim, 40 Days has pleaded the elements of fraud in relation to the false sign-ups protest only, and not the shopping cart abandonment protest. Since s. 137.1(6) of the CJA precludes an amendment of the claim to prevent or avoid dismissal (without a court order), 40 Days’ claim of fraud with respect to the issue of shopping cart abandonment cannot be sustained.
[112] Ms. Dietrich submits that 40 Days knew the false sign-ups were false very early on, and that knowledge of the true state of affairs is a valid defence to fraud. Since 40 Days knew the sign-ups to be false, they did not cause 40 Days to act. 40 Days did not reserve vigil spots for participation by the Defendants and there was no upper limit or maximum number of people who could attend a protest.
[113] Ms. Dietrich further argues that the false sign-ups protest did not cause any loss to 40 Days since its evidence is that the vigils were not cancelled in those locations that ceased using the online calendar. Further, on cross-examination, Mr. Karlen agreed that the October 2021 campaign was “one of the most successful campaigns” that 40 Days has had and that it had been well-attended. 40 Days published on its blog a post entitled: “Saved Baby Numbers Doubled in 2021”. She submits that the only damages claim that 40 Days has asserted is approximately $14,000.00 that it spent on IT security upgrades to its sign-up process but that it failed to lead sufficient evidence to support this amount.
Discussion
[114] I accept Ms. Dietrich’s argument that, since 40 Days did not plead the shopping cart abandonment protest in support of this cause of action in its statement of claim, 40 Days cannot meet its onus under s. 137.1(4)(a) respecting this ground.
[115] Based on the record before me, I am of the view that the evidence does not establish that 40 Days was induced by the false sign-ups to act in a manner that resulted in a loss to it. Thus, 40 Days does not have a real prospect of success on this issue.
[116] I am also of the view that Ms. Dietrich has a valid defence to the claim of civil fraud on the basis of 40 Days’ state of knowledge of the falsity of the sign-ups.
[117] Accordingly, 40 Days has not met its onus with respect to this claim.
Civil Conspiracy
[118] 40 Days alleges that the false sign-ups, shopping cart abandonment, internet harassment, and defamation amount to predominant purpose conspiracy or, alternatively, unlawful conduct conspiracy.
Predominant Purpose Conspiracy
[119] To establish predominant purpose conspiracy, a plaintiff must prove that: (i) the defendants acted in combination; (ii) with the predominant intention of causing injury to the plaintiff; and (iii) as a result, actual damage is suffered by the plaintiff: see Agribrands Purina Canada Inc. v. Kasamekas, 2011 ONCA 460, 106 O.R. (3d) 427, at para. 24.
[120] Predominant purpose conspiracy requires an actual intent to injure the plaintiff. In Harris v. GlaxoSmithKline Inc., 2010 ONCA 872, 106 O.R. (3d) 661, at para. 39, Moldaver J.A. (as he was then) explained things this way:
To make out a conspiracy to injure, the defendant’s predominant purpose must be to inflict harm on the plaintiff. It is not enough if the harm is the collateral result of acts pursued predominantly out of self-interest. The focus is on the actual intent of the defendants and not on the consequences that the defendants realized or should have realized would follow.
Position of 40 Days
[121] 40 Days submits that the elements of predominant purpose conspiracy are met. First, it argues that the comments posted by the Defendants in relation to Ms. Dietrich’s videos make it clear they were acting in concert with each other. Second, the primary purpose of the Defendants agreeing to act together was to cause injury to 40 Days and to its ability to organize and undertake its vigils and that this is apparent from the Defendants’ comments and exchanges themselves. And third, 40 Days submits that it has provided evidence of the following harms:
(a) an inability to organize, or difficulties organizing, prayer vigils which is its chief activity;
(b) an inability to use, or difficulties using, 40 Days’ website which it created and maintains;
(c) paid staff time incurred to deal with the consequences of the false sign-ups and postings, including 160+ hours in October 2021;
(d) at least $14,760.97 USD spent on online security measures;
(e) the distribution of contact information of 40 Days’ employees and associates which was used by the defendants for harassing purposes;
(f) alarm and emotional distress caused to 40 Days’ personnel; and
(g) presumed reputational harm caused by the defamatory posts.
Position of Ms. Dietrich
[122] Ms. Dietrich argues that the evidence does not show that she and the other Defendants were involved in a conspiratorial agreement. She submits that her predominant purpose was not to harm or injure 40 Days but rather to counter-protest 40 Days’ protesting outside of hospitals. She argues that her evidence was unshaken in this regard on cross-examination. In addition, Ms. Dietrich contends that 40 Days did not suffer any damage due to the alleged conspiracy. If there was any harm, it was collateral and she did not realize harm would follow.
Discussion
[123] Based on the record before me, I find that there is evidence revealing communications between Ms. Dietrich and other of the Defendants that shows they were working on a coordinated basis to falsely sign-up for vigil shifts and/or to participate in shopping cart abandonment and/or to report 40 Days to Facebook and Instagram for false health information or harassing content.
[124] Given the nature of the comments exchanged, I am of the view that the predominant purpose of this coordinated effort was to injure 40 Days by way of impeding its ability to organize its vigils and to use its vigil sign-up calendar in its normal functioning manner.
[125] I find Ms. Dietrich’s claims that she did not intend on causing harm to 40 Days difficult to reconcile with her contemporaneous statements made in the videos of: “so it messes with 40 Days for Life’s schedule”, “so it ruins 40 Days for Life goal to fearmonger”, “TikTok, please do your thing”, “signal boost the heck out of this”, “don’t let these people protest outside of hospitals”, “enough is enough”, “our work”. I believe her statements made in the videos themselves to be a much stronger indicator of her actual intentions than statements found in her affidavits. Further, when asked on cross-examination if she intended the false sign-up protest to “ruin” 40 Days’ goals, Ms. Dietrich responded that her intention “[w]as to impact and not make them as successful. I didn’t think I was going to be able to fully stop the protests.”
[126] With respect to the damage element of the tort, I find that 40 Days has provided sufficient evidence of injury or harm suffered as a result.
[127] I conclude that there is substantial merit to 40 Days’ claim respecting predominant purpose conspiracy.
[128] I am of the view that Ms. Dietrich’s defences to this claim “could go either way”.
Unlawful Conduct Conspiracy
[129] To establish unlawful conduct conspiracy, the following elements must be present: (a) the defendants act in combination, that is, in concert, by agreement or with a common design; (b) their conduct is unlawful; (c) their conduct is directed towards the plaintiff; (d) the defendants should know that, in the circumstances, injury to the plaintiff is likely to result; and (e) their conduct causes injury to the plaintiff: see Agribrands, at para. 26. Under this ground, it is not necessary that the predominant purpose of a defendant's conduct be to cause injury to the plaintiff.
[130] A conspirator who joins with others in “a common design to commit unlawful acts” can be held responsible “for those unlawful acts of the others that are probable consequences of the original design”, even though some acts may be solely inspired or instigated by a co-conspirator: Claiborne Industries Ltd. v. National Bank of Canada (1989), 1989 CanLII 183 (ON CA), 69 O.R. (2d) 65 (C.A.), at para. 61.
Position of 40 Days
[131] 40 Days submits that the elements of unlawful means conspiracy are met. Beginning with the first element, for the same reasons referenced in relation to its predominant purpose conspiracy claim, 40 Days submits that there is a real prospect that it will be able to demonstrate an agreement between the Defendants at trial.
[132] With respect to the second element, 40 Days submits that, to the extent that Ms. Dietrich and the Defendants are liable for the tortious conduct of false sign-ups, shopping cart abandonment, internet harassment, and defamation, these constitute unlawful acts for the purposes of unlawful conduct conspiracy.
[133] In the alternative, 40 Days alleges three breaches of federal legislation as grounding the unlawful means and submits that, even if Ms. Dietrich did not personally engage in these unlawful acts or did so only on one occasion, to the extent that she urged on the other Defendants, she still violated these legislative provisions. First, 40 Days argues that Ms. Dietrich breached s. 6(1)(a) of Canada’s Anti-Spam Legislation, S.C. 2010, c. 23,[^1] in that the spam experienced by 40 Days’ personnel by the Defendants was a foreseeable consequence of Ms. Dietrich “egging on harassment and publishing” Ms. Richter’s email address and she is therefore responsible for it. That subsection reads:
6 (1) It is prohibited to send or cause or permit to be sent to an electronic address a commercial electronic message unless
(a) the person to whom the message is sent has consented to receiving it, whether the consent is express or implied;
[134] Second, 40 Days argues that the false sign-ups campaign violates s. 342.1(1) (“unauthorized use of a computer”) of the Criminal Code. That subsection provides:
342.1 (1) Everyone is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years, or is guilty of an offence punishable on summary conviction who, fraudulently and without colour of right,
(a) obtains, directly or indirectly, any computer service;
(b) by means of an electro-magnetic, acoustic, mechanical or other device, intercepts or causes to be intercepted, directly or indirectly, any function of a computer system;
(c) uses or causes to be used, directly or indirectly, a computer system with intent to commit an offence under paragraph (a) or (b) or under section 430 in relation to computer data or a computer system; or
(d) uses, possesses, traffics in or permits another person to have access to a computer password that would enable a person to commit an offence under paragraph (a), (b) or (c).
(2) In this section,
intercept includes listen to or record a function of a computer system, or acquire the substance, meaning or purport thereof;
[135] 40 Days contends that Ms. Dietrich breached s. 342.1(1) in that: (a) she signed up for 40 Days’ website and online vigil calendar which was a computer service; (b) her use of the computer service was prohibited for reasons including breaches of 40 Days’ Terms of Use; (c) a reasonable person in Ms. Dietrich’s circumstances would conclude that signing up with the intention of not showing up is dishonest; (d) Ms. Dietrich acted without colour of right, as there is no evidentiary basis to suggest that she honestly believed this was justified; and (e) she acted fraudulently.
[136] Third, 40 Days argues that Ms. Dietrich violated ss. 430(1.1)(c) and (d) (“mischief in relation to computer data”) of the Criminal Code through the false sign-ups campaign. Section 430(1.1) reads:
430 (1.1) Everyone commits mischief who wilfully
(a) destroys or alters computer data;
(b) renders computer data meaningless, useless or ineffective;
(c) obstructs, interrupts or interferes with the lawful use of computer data; or
(d) obstructs, interrupts or interferes with a person in the lawful use of computer data or denies access to computer data to a person who is entitled to access to it.
[137] Subsection 430(8) of the Criminal Code provides that, in this section, “computer data” has the same meaning as in s. 342.1(2) which reads:
computer data means representations, including signs, signals or symbols, that are in a form suitable for processing in a computer system;
[138] 40 Days argues that Ms. Dietrich breached ss. 430(1.1)(c) and (d) in that: (a) the information contained and displayed in the vigil calendars is computer data; (b) 40 Days uses that data lawfully; (c) through the false sign-ups, Ms. Dietrich wilfully obstructed, interrupted, or interfered with the lawful use of this data by 40 Days’ personnel; and (d) Ms. Dietrich had actual knowledge that obstruction, interruption or interference would be the result of her actions.
[139] With respect to the damages element of the tort, 40 Days relies on the same harms it identified for the predominant purpose conspiracy.
[140] 40 Days submits that it is clear that the Defendants’ conduct was directed towards it and was in circumstances in which they knew, or ought to have known, that injury to 40 Days was likely to result, harm did result and, accordingly, the elements are met.
Position of Ms. Dietrich
[141] Similar to her defence to the predominant purpose conspiracy claim, Ms. Dietrich contends that the online exchanges between her and the commenting Defendants do not rise to the level of an agreement to injure 40 Days, only to counter-protest by way of digital activism.
[142] Ms. Dietrich also argues that 40 Days has failed to demonstrate that the Defendants used “unlawful means”. With respect to the torts of defamation, internet harassment, and fraud as it relates to the false sign-ups, she submits that these alleged unlawful acts are not supported by the evidence and, consequently, cannot be relied upon to ground an unlawful conduct conspiracy claim. Regarding the allegation that she breached the federal anti-spam legislation, Ms. Dietrich submits that her videos do not indicate a conspiracy to spam Ms. Richter or any 40 Days’ associate. Further, there is no evidence in any of the comments attached to her videos of an effort to sign up Ms. Richter for spam emails. With respect to the s. 430 “mischief” and s. 342.1 “unauthorized computer use” Criminal Code allegations, Ms. Dietrich argues that she did not interfere with any computer data as she was only accessing a publicly-available sign-up page, which is not an unlawful act.
[143] Ms. Dietrich submits that, in any event, there is no evidence that the alleged conspiracy resulted in harm or damage to 40 Days. Rather, she contends that 40 Days described its Fall 2021 Campaign as a great success and the prayer vigils went on as planned. Ms. Dietrich disputes that 40 Days has provided satisfactory evidence to establish that $14,000 in IT security measures was incurred as damages.
Discussion
Internet Harassment
[144] I find there is evidence of some form of agreement between Ms. Dietrich and other of the Defendants to injure 40 Days by way of disrupting its online vigil registration and/or its online store and/or by reporting it for false health information or harassing content. In light of my finding that 40 Days has met its onus with respect to its claim of internet harassment, to the extent that its unlawful conduct conspiracy claim depends upon internet harassment as supplying the requisite “unlawful means”, I find that it also possesses a real prospect of success against the Defendants. In directing their unlawful conduct towards 40 Days, the Defendants must have known, or should have known, that injury to it was likely. Regarding injury, I find that there is a real prospect that 40 Days will succeed in satisfying this element at trial. With respect to whether 40 Days has established that there are grounds to believe that Ms. Dietrich has no valid defences in relation to this claim, I find that Ms. Dietrich’s denials of wrongdoing “could go either way” as a defence.
Defamation
[145] In my opinion, the evidence does not support a conspiratorial agreement between Ms. Dietrich and the other Defendants to defame 40 Days. The online exchanges appear to be mainly focussed on the false sign-ups and shopping cart abandonment campaigns and I have previously found that the “reporting” to Facebook and Instagram was not defamatory.
Fraud
[146] I also am of the view that the evidence does not support that there was an agreement among any of the Defendants to act in a manner that constitutes civil fraud as against 40 Days.
Federal Legislation
[147] I find that there is no evidence to support that Ms. Dietrich violated Canada’s anti-spam legislation or that the spam experienced by some of 40 Days’ personnel was a foreseeable consequence of Ms. Dietrich’s urgings.
[148] I also am not persuaded that 40 Days has a tenable claim that Ms. Dietrich’s conduct breached s. 342.1(1) of the Criminal Code because the evidence does not establish that Ms. Dietrich or the Defendants fraudulently obtained a computer service from 40 Days or “intercepted” any function of 40 Days’ computer system. In addition, the Terms of Use were not in place on the dates Ms. Dietrich personally engaged in the false sign-ups and shopping cart abandonment.
[149] Further, in my view, the evidence does not support a tenable claim that Ms. Dietrich breached ss. 430(1.1)(c) and (d) of the Criminal Code because 40 Days was always able to use and have access to its computer data. That is, there was no obstruction, interruption or interference with the data as held, recorded or stored on the 40 Days computer system. 40 Days had control of the data and it remained available to 40 Days at all times; there was no denial of access.
[150] For all the reasons set out above, at this preliminary stage, I find that 40 Days has met its onus under s. 137.1(4)(a) only as it relates to certain grounds of its civil conspiracy claim.
(iii) Public Interest Hurdle – Section 137.1(4)(b)
[151] The final step involves determining whether the harm likely to be or have been suffered by 40 Days, as a result of Ms. Dietrich’s expression, is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting the expression that gives rise to the proceeding: see Pointes, at paras. 61-62.
[152] The harm can be either monetary or non-monetary in nature; neither is more important than the other: see Pointes, at para. 69. A plaintiff does not need to prove harm or causation but must provide evidence from which the motion judge can draw an inference of likelihood respecting the existence of the harm and the relevant causal link: see Pointes, at para. 71.
[153] If harm that is causally linked to the expression is established, then the public interest must be weighed and the quality of the expression and the motivation behind it become relevant. As the Supreme Court of Canada explained in Pointes, at para. 77:
The weighing exercise under s. 137.1(4)(b) can thus be informed by this Court’s s. 2(b) Canadian Charter of Rights and Freedoms jurisprudence, which grounds the level of protection afforded to expression in the nature of the expression (R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45, at para. 181). For example, the inquiry might look to the core values underlying freedom of expression, such as the search for truth, participation in political decision making, and diversity in forms of self-fulfilment and human flourishing (Sharpe, at para. 182; Thomson Newspapers Co. v. Canada (Attorney General), 1998 CanLII 829 (SCC), [1998] 1 S.C.R. 877, at para. 24). The closer the expression is to any of these core values, the greater the public interest in protecting it.
[154] The nature of s. 137.1(4)(b) is “open-ended” such that the motion judge has the “ability to scrutinize what is really going on in the particular case before them” and consider all relevant factors: Pointes, at paras. 79-81.
Position of 40 Days
[155] In this case, 40 Days submits that it has provided evidence of the harms previously identified in paragraph 121 above. It also contends that internet-based defamation has a unique potential for harm as was recognized in Lavallee, at paras. 75 and 92.
[156] 40 Days argues that the quality of Ms. Dietrich’s impugned expression is on the low end since the impugned posts do not actually engage with the abortion debate but instead serve to target 40 Days for sabotage and harassment.
[157] 40 Days relies on SWA Vancouver Limited v. Unite Here, Local 40, 2019 BCSC 1806, at paras. 18-20, 119, wherein the court held that noise amounting to nuisance or obstruction of property is not legitimate expressive conduct. By analogy, 40 Days argues that Ms. Dietrich’s expression by way of “blocking” online sign-ups for vigils or encouraging harassment is not legitimate expressive conduct but merely tortious conduct. The reporting of social media accounts is a form of sabotage given that Ms. Dietrich did not care on what grounds 40 Days was reported. Her motivation was to “ruin” 40 Days and end its protesting activities. 40 Days argues that “self-help” sabotage should be discouraged.
[158] 40 Days submits that its action does not impede Ms. Dietrich’s ability to express herself on the issue of abortion. It is only pursuing her expression that constitutes deliberate tortious conduct towards it. If 40 Days’ claim is dismissed, the public interest in protecting business, individual, and non-profit websites will be undermined, as contractual and tort protections may prove useless.
Position of Ms. Dietrich
[159] Ms. Dietrich argues that 40 Days has failed to establish it suffered substantial harm and that it cannot demonstrate a causal link between the expression underlying the proceeding and the harm suffered. While Ms. Dietrich acknowledges that her videos did have an impact in that users affected 40 Days’ vigil online registration for the days October 3 and 4 and caused stress for staff and upgrades to the website, taken in context, these impacts or harms are relatively minor and do not meet the “sufficiently serious” threshold. Ms. Dietrich submits that 40 Days’ evidence was that its Fall 2021 vigil protests still took place and enjoyed much success; that 40 Days has admitted it did not suffer any actual damages in terms of lost sales as a result of the shopping cart abandonment protest; and that none of its Facebook or Instagram posts were removed after being “reported” by the Defendants. She restates that 40 Days has failed to lead adequate evidence to support its damages claim of $14,000 for cybersecurity upgrades.
[160] Ms. Dietrich argues that the harm to 40 Days does not outweigh restricting her freedom of expression as it relates to her deeply held views. Her expression must be assessed as a whole, in the bigger context and in light of her general pattern of advocacy. She argues that to restrict her ability to express herself would be highly problematic in light of the minor nature of the harms here. Ms. Dietrich argues that the impugned expression is highly valuable and worthy of protection. If it is not protected, there is a strong risk of a chilling effect in the public discourse around abortion. She submits that, what is really going on, is that a large, powerful American corporation committed to advocacy against abortion has targeted her, an individual advocate, with a massive lawsuit even though it has suffered little to no actual harm as a result of her actions. She contends that 40 Days is trying to silence pro-choice individuals which is exactly the kind of conduct s. 137.1 was designed to prevent. Ms. Dietrich submits that abortion is a controversial topic on which both sides deserve to be heard.
Discussion
[161] Based on the record before me, I find there is credible evidence that 40 Days has suffered some harm as a result of the impugned TikTok videos and the related campaigns undertaken by the Defendants. For instance, while 40 Days admitted that false sign-ups happened on occasion before October 2021, it states that the number of false sign-ups was much more significant after Ms. Dietrich’s videos and that it experienced false sign-ups through the entire month of October, not just October 3 and 4; the evidence shows that, after the release of the October 6 video, there was another “bump” in false sign-ups on October 7. Approximately 3000 new user accounts were created, each representing a potential separate user who could falsely sign up for individual shifts. In response to an internal survey undertaken in November 2021 regarding the impact of Ms. Dietrich’s campaigns, of the nine Canadian locations who responded, all reported disruptions with six characterizing them as “significant” or “major” and three as minor.
[162] I am satisfied that 40 Days has put forward evidence to support the relevant causal link between the harm suffered and the expression underlying its action. That is, it was Ms. Dietrich’s TikTok videos (and associated comments and/or exchanges) that instigated the false sign-ups and other conduct that is said to have caused harm to 40 Days. While it is true that Mr. Germann’s cellphone was publicly available, Ms. Dietrich republished it to her TikTok viewers in a manner that encouraged them to call it with motives ulterior to why he was posting it.
[163] It is beyond argument that there is a significant public interest in the issues of reproductive justice and abortion. 40 Days did not object to Ms. Dietrich’s statements about these issues or her position on the appropriateness of anti-abortion groups protesting outside of abortion facilities. The primary purpose of 40 Days commencing its action does not appear to be to silence Ms. Dietrich or the other Defendants on their pro-choice views. Rather, the main motivation of 40 Days appears to be to protect its ability to organize its prayer vigils without undue disruption, to carry on its organizational activities without undue harassment, and to protect its reputation. 40 Days identified particular videos that it alleges encouraged online campaigns against it and identified specific statements that it asserts defamed it. The weighing exercise involves a consideration of whether those expressions deserve protection.
[164] While Ms. Dietrich’s motivation for expressing herself through the impugned TikTok videos may have started out as being part of the debate on whether anti-abortion protesting should be permitted near hospitals providing abortion services, some of her efforts appear to have subsequently become more focussed on actively disrupting and impeding 40 Days in its anti-abortion activities. I do not find that there is significant public interest in protecting that kind of expression.
[165] Based on the foregoing, I conclude that the harm suffered by 40 Days as a result of Ms. Dietrich’s expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting the impugned expression that gives rise to the proceeding.
2. Is Ms. Dietrich Entitled to Damages under [Section 137.1(9)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-c43/latest/rso-1990-c-c43.html) of the [CJA](https://www.canlii.org/en/on/laws/stat/rso-1990-c-c43/latest/rso-1990-c-c43.html)?
[166] Given my conclusions above, I find that Ms. Dietrich is not entitled to damages under s. 137.1(9) of the CJA.
3. Should Ms. Dietrich’s Medical Records be Sealed?
[167] In light of my ruling that Ms. Dietrich is not entitled to damages, the medical records filed in support of her damages claim under s. 137.1(9) of the CJA are not relevant or material. As a result, and in light of their confidential, personal and sensitive nature, I order that the medical records found at Exhibit “LLL” be sealed.
DISPOSITION
[168] The s. 137.1 motion brought by Ms. Dietrich is dismissed.
COSTS
[169] The parties requested an opportunity to make written costs submissions in the event that they are not able to agree on the issue of costs.
[170] Section 137.1(8) of the CJA provides that if a proceeding is not dismissed under s. 137.1, the responding party is not entitled to costs on the motion unless the judge determines that such an award is appropriate in the circumstances.
[171] I would urge the parties to agree on costs. If they are unable to do so, then costs submissions may be made as follows:
a. By October 20, 2022, 40 Days shall serve and file its written costs submissions, not to exceed three pages, double-spaced, together with a draft bill of costs and copies of any pertinent offers; and
b. Ms. Dietrich shall serve and file her responding costs submissions of no more than three pages, double-spaced, together with a draft bill of costs and copies of any pertinent offers, by November 3, 2022; and
c. 40 Days’ reply submissions, if any, are to be served and filed by November 10, 2022 and are not to exceed two pages.
d. If no submissions are received by November 10, 2022, the parties will be deemed to have resolved the issue of the costs and costs will not be determined by me.
B. MacNeil J.
Released: September 30, 2022