COURT FILE NO.: CV-22-00076 DATE: 2024/04/03 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Kimberly Gillespie, Plaintiff AND: George Fraser, Diana Tilbert, and Tina Hall, Defendants

BEFORE: Somji J.

COUNSEL: Emilie Aloe, for the Plaintiff George Fraser, Self-Represented Tina Hall, Self-Represented

HEARD: February 22, 2024 by videoconference, Kingston

Reasons for summary Judgment

Overview

[1] The Plaintiff brings a motion for summary judgment against Defendants George Fraser and Tina Hall (“Defendants”) for intentional infliction of emotional distress and publicity placing the Plaintiff in a false light. Mr. Fraser is the Plaintiff’s father. He pled guilty to second degree murder and was sentenced to life in prison on June 3, 2015 for killing the Plaintiff’s mother (“deceased”). While incarcerated, Mr. Fraser created a website in 2020 entitled “abandonedandbetrayed” (“website”) in which he defamed and blamed the Plaintiff for her mother’s death. With the assistance of Ms. Tina Hall and a third Defendant Ms. Diana Tilbert, he circulated the website Uniform Resource Locator (“URL”) on postcards to the Plaintiff’s family and friends.

[2] On January 20, 2023, I issued a default judgment in relation to the same allegations and found co-Defendant Diana Tilbert liable for the same torts: Gillespie v. Fraser et al., 2023 ONSC 537 (“Decision”). Consequently, this decision should be read in conjunction with my earlier Decision. Given the facts and legal issues are largely identical, I adopt here the facts and findings made in my earlier Decision. Where relevant, I refer to additional facts specific to Mr. Fraser and Ms. Hall and any new facts that have since come to the Plaintiff’s attention.

[3] The issues to be decided are as follows:

i. Is there a genuine issue for trial?

ii. Are Defendants Fraser and Hall liable for intentional infliction of emotional distress?

iii. Are Defendants Fraser and Hall liable for publicity placing the Plaintiff in a false light?

iv. Is the Plaintiff entitled to injunctive relief to prevent further defamation?

History of the Proceedings

[4] The Plaintiff filed a statement of claim dated March 10, 2022 against all Defendants. Mr. Fraser filed a statement of defence on April 13, 2022.

[5] Upon issuance of my Decision against Ms. Tilbert on January 20, 2023, the Plaintiff brought a summary judgment motion against Mr. Fraser and Ms. Hall (“motion”). The motion was scheduled for September 19, 2023 but further adjourned to January 4, 2024.

[6] On the date of the scheduled motion in January 2024, Mr. Fraser appeared virtually from Bath Correctional Institution. He advised that he never received any materials relating to this matter since the statement of claim was issued, including my Decision or the amended motion record. However, the Plaintiff’s counsel confirmed that Mr. Fraser received some materials because he has posted a selection of them on a second website entitled “You be the Judge” that he initiated in July 2023. Given it could not be confirmed that Mr. Fraser had received all the summary judgment motion materials, I granted Mr. Fraser a further adjournment to February 22, 2024. I also denied Mr. Fraser’s request for appointment of amicus curiae.

[7] On February 22, 2024, Mr. Fraser appeared virtually and confirmed he received the materials, but that he was disappointed it was not in digital format. He was not interested in reading them and threw out 550 pages. Contrary to his previous statement in January 2024, he stated he may have thrown out the documents the first time he received them but could not remember. Mr. Fraser informed the court that, like Ms. Hall, he would not participate in these proceedings which he described as frivolous and vexatious. He exited the proceedings and the hearing continued in his absence.

[8] Ms. Hall’s physical whereabouts are unknown, and she did not appear in court for the motion. Since the issuance of the claim, Plaintiff’s counsel engaged in multiple types of searches, including retaining a private investigator, to locate Ms. Hall. Ultimately, Ms. Hall was identified to be residing at 441 Withnell Crescent in Oakville, Ontario, and on December 14, 2022 she was personally served at that address. Plaintiff’s counsel brought a motion to extend the time for service and to validate service which was granted by Williams J. on May 25, 2023.

[9] On January 9, 2023, the Plaintiff’s counsel received a statement of defence from Ms. Hall which was drafted by Mr. Fraser holding himself out to be her legal representative thus indicating that Ms. Hall did, indeed, obtain the statement of claim and communicated to Mr. Fraser. I am satisfied that the materials, including the amended motion record, have been properly served on Ms. Hall.

[10] In addition to the materials listed at paragraph 9 of my Decision, I have relied on the materials in the Plaintiff’s amended motion record of December 20, 2023 which includes the Plaintiff’s updated affidavits of July 17, August 9, and December 5, 2023.

Issue 1: Is there a genuine issue for trial?

[11] Pursuant to r. 20.04 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, and in accordance with the test set out for summary judgment in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, I find there is no genuine issue for trial.

[12] Mr. Fraser violently murdered Judith Fraser on January 14, 2014 following her decision to separate from him. Details of the murder are set out at paragraphs 16 and 17 of my Decision.

[13] In November 2020, with the assistance of Ms. Tilbert and Ms. Hall, Mr. Fraser developed and published the website on the internet. It was 176 pages long, and contained countless false, malicious and derogatory comments about the Plaintiff in order to deflect blame for the deceased’s murder from himself to the Plaintiff. The website references the Plaintiff over 500 times and contains personal information which the Plaintiff attests would have been only known by few people confirming to her that Mr. Fraser largely authored the website. Mr Fraser does not deny he is the author. The website was active until January 2022.

[14] Mr. Fraser has limited, if any, access to the internet while in jail. In an email dated January 10, 2024, the Executive Assistant of the Warden of Bath Correctional Institution states that inmates have access to computers with limited networks referred to as the inmate Local Area Network (“LAN”), with no access to the internet.

[15] The Plaintiff alleges that Ms. Tilbert and Ms. Hall assisted Mr. Fraser by typing up and posting the contents on the website, adding imagery requested by Mr. Fraser, and printing and disseminating the postcards that were delivered to the intended recipients. To the best of the Plaintiff’s knowledge, Ms. Tilbert shares a joint account with Mr. Fraser, has power of attorney, and would have access to funds to carry out his instructions while he is incarcerated. In addition, the website contains photos from the Plaintiff’s mother’s gravesite. Mr. Fraser was in jail at the time of the deceased’s funeral. The Plaintiff believes that upon Mr. Fraser’s instructions, Ms. Tilbert and/or Ms. Hall, attended the deceased’s gravesite for the purposes of taking photos that appear on the website.

[16] Additional details about the development of the website, its defamatory content, the dissemination of the website URL on postcards, the content of the postcards, and the circumstances under which the Plaintiff came to learn of the website through friends and family is set out at paragraphs 18 to 28 of my Decision.

[17] The Plaintiff contacted the Niagara Regional Police on November 5, 2020 upon her discovery of the website. On July 27, 2021, Mr. Fraser was charged with criminal harassment for creating and distributing the website with the assistance of Ms. Tilbert and Ms. Hall as well as failure to comply with an in-custody, non-communication order under the Criminal Code, R.S.C. 1985, c. C-46. Extracts from the police investigation, including police interviews with the postcard recipients, were filed by the Plaintiff’s counsel.

[18] In response to the criminal charges, Mr. Fraser entered into a peace bond on or around March 30, 2022 with the condition that he have no contact with Ms. Gillespie, her family members, and the postcard recipients for a period of three years. Mr. Fraser was subsequently charged with another count of criminal harassment and disobeying a court order. As the Plaintiff explained in court, a further criminal conviction would add little to a life sentence and the peace bond spares the Plaintiff the stress of a criminal trial.

[19] In his statement of defence which he served on the Plaintiff, but did not file with the court, Mr. Fraser admits to publishing and circulating the website thereby acknowledging liability. While the website was not active when Mr. Fraser served his defence, he indicated he would republish the website. In fact, following the Plaintiff’s reply on April 25, 2022, he relaunched the website on July 20, 2022. At the time of the summary judgment motion, the website remained online.

[20] Mr. Fraser acknowledges in his statement of defence that he does not enjoy “direct access to the internet” while in jail. He states that the website was a personal expression of his thoughts, beliefs, and opinions and where he had published his autobiography/memory entitled “What happened to George and Judy?” He views the website and its contents as something protected by his right to freedom of expression under s. 2(b) of the Canadian Charter of Rights and Freedoms.

[21] However, this defence is without merit given that s. 2(b) of the Charter applies to actions within the authority of the federal or provincial government. Section 2(b) of the Charter does not apply to actions between private parties in tort except to the extent that the common law applied must be consistent with Charter values: RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573, at pp. 602-03; Colour Your World Corp. v. Canadian Broadcasting Corp. (1994), 17 O.R. (3d) 308 (Gen. Div.), at p. 309, rev’d for other considerations, (1998), 38 O.R. (3d) 97 (C.A.); see also Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640, at paras. 43-57; Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130, at para. 95. Furthermore, the tort of defamation “has already taken into account freedom of expression which is not an unfettered or absolute right or unbridled freedom:” Hudspeth v. Whatcott, 2017 ONSC 1708, at paras 117-118, 125, 136, 146:118, 125; 40 Days for Life v. Dietrich, 2023 ONCA 379, at para. 15.

[22] Mr. Fraser states that both Ms. Tilbert and Ms. Hall were employees in their endeavours to support the internet publication because they acted under his instructions, were paid, and were reimbursed for any expenses. Mr. Fraser explains that Ms. Tilbert and Ms. Hall functioned as surrogates in managing the website and were assured they were doing nothing wrong. Consequently, he argues they should not be named in the lawsuit. Mr. Fraser acknowledges that promotional postcards for the website were mailed to family, friends, neighbours, and community leaders in the first week of November 2020. In short, the Plaintiff’s pleadings about the involvement of Ms. Tilbert and Ms. Hall in creating and disseminating the website are supported by the facts pleaded in Mr. Fraser’s own statement of defence.

[23] Ms. Hall’s statement of defence alleges there is no merit to the Plaintiff’s action because the name “Tina Capone Hall” is not her legal name, but a Facebook moniker. This limited defence is of no merit. Ms. Hall has not denied her involvement in the conduct alleged against her nor did she participate in these proceedings to substantiate any defences for her conduct.

[24] For the Plaintiff, the website is a reiteration of Mr. Fraser’s hatred for her. It is not the first time he tried to deflect blame for the deceased’s murder onto the Plaintiff. After stabbing the deceased multiple times, Mr. Fraser drove to the Plaintiff’s home and blamed her for his actions and also threatened her. On the website, Mr. Fraser not only blames the Plaintiff for her mother’s death but also for his incarceration.

[25] The Plaintiff was undoubtedly traumatized by Mr. Fraser’s murder of her mother. She started to heal from the experience and eventually returned to work. However, the publication and dissemination of the website has retraumatized her and resulted in significant setbacks to her emotional and physical recovery as well as her employment. Additional details about the impact of the Defendants’ conduct on the Plaintiff’s health and employment as well as her ongoing treatment to address these impacts are set out at paragraphs 30 to 38 of my Decision.

[26] Even though Mr. Fraser is incarcerated, the Plaintiff feels unsafe given Mr. Fraser was able to orchestrate the creation and dissemination of a defamatory website from a distance and with limited electronic means. The Plaintiff learned on April 11, 2023 from the Niagara Regional Police Service that a search was conducted of Mr. Fraser’s cell phone and evidence was located which included his requests for internet searches of herself and her family further contributing to her anxiety and fear.

[27] In September 2023, Mr. Fraser sent correspondence dated August 30, 2023 to the Plaintiff’s lawyer indicating that he got a new site entitled “Daughter v Father – You Be the Judge” up and running. He also stated that hits on the original website still show a lot of interest and that he is in discussions with podcasters to ratchet up the traffic. As a result of her continued fear, the Plaintiff sold her home of 23 years in the summer of 2023 and relocated with her family to a place unknown to the Defendants.

[28] Eight of the 203 pages of the “You be the Judge” website were filed with the court. The new website refers to this legal action, Mr. Fraser’s right to freedom of expression, and reiterates some of the same false, malicious, and derogatory information contained in the original website. It also includes a photo of Mr. Fraser and the Plaintiff.

[29] The Plaintiff took leave from her job and is on long-term disability. On February 9, 2023, the Plaintiff’s psychotherapist Brianna Van Hooydonk provided an opinion to SunLife, the Plaintiff’s insurer, that the Plaintiff is unable to work for the foreseeable future. The Plaintiff has continued her treatment with her psychiatrist Dr. Naqvi Imran who confirmed in March 2023 that the Plaintiff has suffered a relapse of her Post-Traumatic Stress Disorder and depression as a result of the website.

[30] On May 25, 2023, SunLife approved continuation of benefits for the Plaintiff because her health prevents her from working at any occupation. The Plaintiff agrees with this assessment indicating in her most recent affidavit dated December 20, 2023 that she does not feel her condition has improved to a point where she would be able to return to her pre-leave employment position or any position. On October 14, 2023, Health Canada approved her retirement on medical grounds to take effect as of September 14, 2021.

[31] This matter does not require additional viva voce evidence or further submissions. It relies on and can be determined based on the documentary evidence filed which indicates what was authored and disseminated. Mr. Fraser does not deny his role in authoring and arranging for the distribution of the information and acknowledges the involvement of Ms. Tilbert and Ms. Hall as contributors and distributors. The Plaintiff’s affidavits and materials set out the impact of the Defendants’ conduct on her.

[32] In these circumstances, I find that a summary judgment motion is proportionate, expeditious, and the least expensive manner in which to address the factual and legal issues raised. Upon review of the materials filed, including the limited pleadings of the Defendants, I am satisfied that the pleadings allow me to make the necessary findings of fact and apply the law in relation to the alleged torts: Hyrniak, at para 49.

Issue 2: Are Defendants Fraser and Hall liable for intentional infliction of emotional distress?

[33] To establish the tort of intentional infliction of emotional distress, the Plaintiff must establish: (1) the Defendant engaged in flagrant or outrageous conduct; (2) calculated to produce harm; and (3) resulting in a visible and provable illness: Prinzo v. Baycrest Centre for Geriatric Care (2002), 60 O.R. (3d) 474 (C.A.), at para. 48.

[34] For the detailed reasons set out at paragraphs 39 to 43 of my Decision, I find that in authoring and distributing false and malicious statements about the Plaintiff’s character and relationship with her mother and attributing the deceased’s death to the Plaintiff, Mr. Fraser and Ms. Hall engaged in flagrant and outrageous conduct that was intended to harm the Plaintiff, and which did, in fact, have that result.

[35] Mr. Fraser suggests that the website was private and could not be viewed by unauthorized individuals, but this does not address his reckless behaviour in disseminating the website to the Plaintiff’s family and friends knowing that the information would come to the Plaintiff’s attention and cause her harm.

[36] On December 22, 2021, Mr. Fraser sent the Plaintiff’s counsel a Christmas card with a picture of him on it carrying a large metal weight. Though the content was entirely unrelated to the action, it suggests that Mr. Fraser does not appreciate the seriousness of the matter or have any remorse for his conduct. I agree with Plaintiff’s counsel that the card was intended to further antagonize the Plaintiff.

[37] In addition, even after facing criminal sanctions for the posting of the website and a lawsuit, Mr. Fraser reposted the website in July 2022.

[38] Finally, on September 4, 2023 Mr. Fraser forwarded Plaintiff’s counsel a document dated August 30, 2023 wherein he taunts that the website continues to show a lot of interest, suggests he is ratcheting up interest in the website, advises of his new website “You Be the Judge”, and threatens to post the website on billboards in St. Catherines, Ontario. This demonstrates Mr. Fraser’s deliberate and persistent intent to continue to harm the Plaintiff.

[39] The resulting harm to the Plaintiff is set out paragraphs 25 to 29 above. It is clear that the Defendants’ conduct has resulted in the Plaintiff feeling unsafe, anxious and fearful, has triggered the relapse of her PTSD and depression, and resulted in her being unable to work, leaving her job and finding herself on long-term disability.

Issue 3: Are Defendants Fraser and Hall liable for publicity placing the Plaintiff in a false light?

[40] To establish the tort of publicity placing a person in a false light, the Plaintiff must establish: (a) the false light in which the Plaintiff was placed would be highly offensive to a reasonable person, and (b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the Plaintiff would be placed: Yenovkian v. Gulian, 2019 ONSC 7279, 62 C.C.L.T. (4th) 45, at para. 170; Kaur v. Virk, 2022 ONSC 6697, at para. 24. Furthermore, the plaintiff need not prove that her reputation would be lowered in the eyes of the community: Kaur, at para. 25.

[41] In this case, Mr. Fraser pled guilty to murdering the Plaintiff’s mother. He would have known that the dissemination of information that deflected from his own responsibility for the deceased’s death was both false and would be highly offensive to any reasonable person, including the Plaintiff.

[42] Ms. Hall would also have been well aware of Mr. Fraser’s responsibility in the murder of the deceased given the event was highly publicized and because of her close relationship with Mr. Fraser. That relationship continues as Ms. Tilbert reported that Ms. Hall is now Mr. Fraser’s power of attorney: Gillespie v. Fraser, 2023 ONSC 4183, at para. 17 (d). In allowing for the development and dissemination of a website that falsely directs responsibility for murder to the Plaintiff, Ms. Hall presented information about the circumstances of the deceased’s death in a false light, that she knew was false and would be highly offensive to a reasonable person.

Issue 4: Is the Plaintiff entitled to injunctive relief?

[43] The Plaintiff seeks a permanent injunction restraining the Defendants from further publication and dissemination of the defamatory and derogatory information about the Plaintiff, and specifically, the information that is the subject of this action.

[44] In St. Lewis v. Rancourt, 2015 ONCA 513, 337 OAC 15, at para. 13, the Court of Appeal for Ontario considered two situations where permanent injunctions have been consistently ordered after defamation proceedings. These two situations include: (1) where there is a likelihood that the defendant will continue to publish defamatory statements despite a finding that they are liable to the plaintiff for defamation; or (2) where there is a real possibility that the plaintiff will not receive any compensation, given that enforcement against the defendant of any damage award may not be possible.

[45] The Court of Appeal reiterated that a “broad ongoing injunction is an extraordinary remedy which should be used sparingly. However, where there has been a campaign of defamation and a likelihood that it will continue, there is authority for such an order:” St. Lewis at para. 16.

[46] More recently, the Ontario Court of Appeal reviewed the test for permanent injunctions in Labourers’ International Union of North America, Local 183 v. Castellano, 2020 ONCA 71, 444 DLR (4th) 183. The Court of Appeal reiterated that permanent injunctions constitute extraordinary relief that must be granted sparingly: at para 24. The test is different than in the case of interlocutory injunctions because at this stage, the court has the ability to determine the merits of the of action and evaluate the legal rights of the parties. In Labourers’ International at para 25, the Ontario Court of Appeal referenced the considerations and approach to be taken as set out by the Court of Appeal of Newfoundland and Labrador in NunatuKavut Community Council Inc. v. Nalcor Energy, 2014 NLCA 46 at para 72 as follows:

i. Has the claimant proven that all the elements of a cause of action have been established or threatened? (If not, the claimant's suit should be dismissed);

ii. Has the claimant established to the satisfaction of the court that the wrong(s) that have been proven are sufficiently likely to occur or recur in the future that it is appropriate for the court to exercise the equitable jurisdiction of the court to grant an injunction? (If not, the injunction claim should be dismissed);

iii. Is there an adequate alternate remedy, other than an injunction, that will provide reasonably sufficient protection against the threat of the continued occurrence of the wrong? (If yes, the claimant should be left to reliance on that alternate remedy);

iv. If not, are there any applicable equitable discretionary considerations (such as clean hands, laches, acquiescence or hardship) affecting the claimant's prima facie entitlement to an injunction that would justify nevertheless denying that remedy? (If yes, those considerations, if more than one, should be weighed against one another to inform the court's discretion as to whether to deny the injunctive remedy.);

v. If not (or the identified discretionary considerations are not sufficient to justify denial of the remedy), are there any terms that should be imposed on the claimant as a condition of being granted the injunction?

vi. In any event, where an injunction has been determined to be justified, what should the scope of the terms of the injunction be so as to ensure that only actions or persons are enjoined that are necessary to provide an adequate remedy for the wrong that has been proven or threatened or to effect compliance with its intent?

[47] Having considered the above-noted factors, I find that a permanent injunction is warranted in this case given first, Mr. Fraser’s continued conduct in creating not one, but two websites that contain false, malicious, and derogatory information about the Plaintiff; second, his refusal to close down both websites notwithstanding the civil action and criminal charges brought against him; and third, his threats in correspondence to Plaintiff’s counsel to further advertise and disseminate the website information. I am satisfied that the current findings of liability for the above-noted torts is not sufficient to protect the Plaintiff from continued defamation.

[48] Given their restrictive scope, permanent injunctions are to be tailored to the specific circumstances of the case. The relief should be limited to what is reasonably necessary to remedy the specific wrong committed and prevent further harm to the complainant: Labourers International at para 26. The remedy should relate only to the prevention of the tort: Labourers’ International at para 31. Consequently, there will be a permanent injunction restraining the Defendants from further dissemination of defamatory and derogatory information about the Plaintiff, including information related to this action.

Conclusion

[49] There is a finding of liability against Mr. Fraser and Ms. Hall for intentional infliction of emotional distress of the Plaintiff and publicity placing the Plaintiff in a false light. There will be an order that the Defendants cease operation of both websites.

[50] Furthermore, there will be an order for a permanent injunction restraining the Defendants, together with any employees, agents, assigns and any persons acting on their behalf or in conjunction with them, from directly or indirectly, by whatever means whatsoever, publishing, posting online or via any other forum, circulating or otherwise disseminating any defamatory and derogatory information about the Plaintiff, and specifically, the information related to this action.

Damages and Costs

[51] The Plaintiff seeks both general and punitive damages in the amount of $400,000 and pre- and post-judgment interest jointly and severally against all Defendants in accordance with ss. 128 and 129 of the Courts of Justice Act, R.S.O. 1990, c. C.43, and costs of the action and motion on a full or substantial indemnity basis. The Plaintiff filed updated materials appended to her most recent affidavits with respect to her loss of income and pensionable earnings. The damages and costs assessment is reserved for a further joint hearing with Ms. Tilbert.

Somji J

Date: April 3, 2024

COURT FILE NO.: CV-22-00076 DATE: 2024/04/03 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: Kimberly Gillespie Plaintiff – and – George Fraser, Diana Tilbert, and Tina Hall Defendants

REASONS FOR SUMMARY JUDGMENT Justice Somji Released: April 3, 2024