Leblanc v. Carvello-Crotty, 2024 ONSC 4286

Court File and Parties

Court File No.: CV-20-00634592-0000 Date: 2024-08-01 Ontario Superior Court of Justice

Between: Cassidy LeBlanc, Plaintiff/Defendant by counterclaim And: Taylor Carvello-Crotty, Defendant/Plaintiff by counterclaim

Counsel: Self-represented, for the Plaintiff/Defendant by counterclaim Manuela Jimenez Bueno, for the Defendant/Plaintiff by counterclaim

Heard: April 30 and May 1, 2024

Reasons for Judgment

Merritt J.

Overview

1The Plaintiff/Defendant by counterclaim Cassidy LeBlanc (“Cassidy”) claims damages for defamation with respect to two internet posts which she says the Defendant/Plaintiff by counterclaim Taylor Carvello-Crotty (“Taylor”) made.

2Taylor denies making one of the posts and says the limitation period has expired with respect to both posts.

3In her counterclaim, Taylor claims damages for defamation with respect to several internet posts that she says Cassidy made. Taylor also pleads breach of privacy torts and that Cassidy’s action is an abuse of process, having been commenced for a collateral purpose.

4Cassidy denies making some of the posts and says that the posts she did make are fair comment.

5Both parties seek mandatory orders requiring removal of the defamatory posts and injunctions prohibiting the opposing parties from repeating the defamatory statements or making similar defamatory statements in the future.

Decision

6Taylor defamed Cassidy in two internet posts; however, the limitation periods have expired.

7Cassidy defamed Taylor in several internet posts. The limitation periods have expired with respect to all of the posts except the TikTok posts made in 2022.

8Cassidy publicly placed Taylor in a false light and publicly disclosed private facts about Taylor.

9I order Cassidy to pay damages to Taylor in the amount of $30,000.

10I order Cassidy to remove all posts about Taylor on any social media platform including but not limited to Facebook, TikTok and Instagram and not make any further repetition of the statements referred to in this action or similar statements.

11I order Taylor to remove all posts about Cassidy on any social media platform including but not limited to Facebook, TikTok and Instagram and not make any further repetition of the statements referred to in this action or similar statements.

Background Facts

12Cassidy and Taylor attended high school together in Mississauga, Ontario starting in September 2013 and were friends. They lived together briefly but their friendship was short lived. They had a falling out and stopped speaking to each other in approximately March 2014. Cassidy says that Taylor falsely accused her of stealing Taylor’s boyfriend and spread gossip about her around their high school. Taylor denies this and says that Cassidy spread false rumors about her.

13On March 25, 2014, Cassidy went to Moncton, New Brunswick. She began attending high school in Moncton in April 2014. She stayed in New Brunswick until July 7, 2014, when she returned to Ontario.

The April 15, 2014 thedirty.com post

14Taylor claims that on April 15, 2014, Cassidy made a post about Taylor on the website thedirty.com that contained false and malicious statements (the “April 15, 2014 thedirty.com post”).

15The April 15, 2014 thedirty.com post identifies Taylor by her first and last name and photograph. The post also refers to her as “Taylor Thotvello” and says:

(1) Taylor is a whore, a pathological liar and a scumbag;

(2) Taylor’s boyfriend left her “stupid ass… because her pu**y’s loose” and “she’s not good in bed”;

(3) She “hops from dick to dick (preferably brown or Hispanic)”;

(4) Everyone she knows has cut her off and “hates her guts because she lies about everything and doesn’t know the truth whether it hit her”;

(5) She made false claims to the Children’s Aid Society about being abused by her mother;

(6) She makes false claims about her ancestry;

(7) Her father is a drug dealer;

(8) She made false claims that her sister Camryn died of brain cancer;

(9) There was an incident where she got drunk and “fcked the man in a bush in a park at 1 am…WITH NO PROTECTION!!!”; and,

(10) She collects welfare illegally and spends the money on marijuana, alcohol, cigarettes, and expensive clothes.

16The author of the April 15, 2014 thedirty.com post refers to speaking to Taylor’s mother, the circumstances surrounding Taylor moving out of her mother’s home, Taylor living with the author, and Taylor having a tattoo of the name Camryn on her chest. The post refers to pregnancy scares and Taylor’s mother finding birth control pills and a pregnancy test under her bed. It also refers to her having nowhere to live because her “ex kicked her out”.

17Cassidy denies that she wrote the April 15, 2014 thedirty.com post.

18Taylor says she saw the April 15, 2014 thedirty.com post shortly after it was made but asserts that she only discovered it was made by Cassidy in November 2022.

The July 24, 2014 thedirty.com post

19Cassidy claims that on July 24, 2014 (a week before her 18th birthday), Taylor made a post about her on thedirty.com that contains false and malicious statements (the “July 24, 2014 thedirty.com post”).

20The July 24, 2014 thedirty.com post identifies Cassidy by first and last name and a photograph. It refers to Cassidy as a “disgusting whore”, a “crazy psycho”, a “freaky lesbian”, a “dirty skank”, and a “dirty whore”. The post says that:

(1) Cassidy would give “a blow job for a gram of weed”;

(2) Her private area sags down “pass the lips” and is “loose enough to fit her fist”;

(3) She has multiple sexually transmitted diseases “according to an ex”;

(4) She is unhygienic with bad breath, only showers every four days and her buttocks smell like “fish sticks”;

(5) She will send “nudes” if added to social media;

(6) She has pornographic films on the pornographic website xhamster.com;

(7) She is the “type to steal [people’s] boyfriends...”;

(8) She is lying about being Greek when really she is French and Italian;

(9) She pushed her then-pregnant mother down a flight of stairs when her mother found “used condoms in her fake tna purse”;

(10) She is a “freaky lesbian who got jelly anytime someone new tried to be friends with her best friend”; and,

(11) She will engage in sexual activity with random male individuals if added on social media.

21Cassidy says that the words from the July 24, 2014 thedirty.com post, in their natural and ordinary meaning, and by innuendo, meant and were understood to mean, inter alia :

(1) That the plaintiff is sexually promiscuous;

(2) That the plaintiff is mentally unstable, unbalanced and ill;

(3) That the plaintiff is dishonest, deceptive and manipulative;

(4) That the plaintiff is offensively violent and physically aggressive; and

(5) That the plaintiff attempts to engage in relationships with taken or married men.

22Taylor denies making the July 24, 2014 thedirty.com post.

23On November 15, 2014, a comment is made by “Cassidy” on the July 24, 2014 thedirty.com post saying that Taylor wrote the post as revenge because the comment’s author exposed her, and everything is a lie (the “November 15, 2014 Comment”). Taylor alleges the November 15, 2014 Comment was made by Cassidy and Cassidy denies making the comment.

24Cassidy says she learned about the July 24, 2014 thedirty.com post approximately four years later on July 29, 2018, from Lina Bannasingthong (“Lina”). Lina sent Cassidy photographs of the post which appeared on an account in the name of Felicity Love, who Cassidy says is actually Taylor.

25Cassidy says she was harassed, starting on July 29, 2018, on Instagram via direct messaging from Jayda Blake. Cassidy says Jayda Blake made comments to her which were related to the July 24, 2014 thedirty.com post. Cassidy says Taylor was using Jayda Blake to bully her.

26On September 24, 2018, Cassidy did a Google search of her own name and discovered that the July 24, 2014 thedirty.com post appeared on the eighth page of the search results.

The August 4, 2018 thedirty.com post

27Taylor says that on August 4, 2018, Cassidy made another post about Taylor on thedirty.com that contains false and malicious statements (the “August 4, 2018 thedirty.com post”).

28The post identifies Taylor by her first name and the same last name from the April 15, 2014 thedirty.com post i.e., “Thotvello”, and says:

(1) Taylor has schizophrenia;

(2) Taylor is a former sex worker; and,

(3) Taylor’s daughter was conceived as a by-product of this sex work.

29Cassidy denies making the August 4, 2018 thedirty.com post.

30Taylor says she saw the August 4, 2018 thedirty.com post shortly after it was made but asserts that she only discovered it was made by Cassidy in November 2022.

The October 4, 2018 Facebook post

31Cassidy says that on October 4, 2018, Taylor made a false and malicious Facebook post under an account in the name of Taylor Lorraine in which she further defamed Cassidy (the “October 4, 2018 Facebook post”).

32The Facebook post refers to Cassidy by her first name using the phrase “a little bird named ‘cough cough’ Cassidy”.

33The Facebook post says that the author of the post and Cassidy were friends in high school.

34The Facebook post says derogatory things about Cassidy including:

(1) Calling her a “little cunt”;

(2) Calling her an “annoying nutcase”;

(3) Calling her a “mama looking bitch”;

(4) Saying Cassidy made false allegations about Taylor “neglecting” her daughter to “smoke crack”; and,

(5) Saying Cassidy is talking about Taylor and lying.

35Cassidy says that the impugned words from the October 4, 2018 Facebook post, in their natural and ordinary meaning, and by innuendo, meant and were understood to mean, inter alia :

(1) That Cassidy has knowingly criminally harassed other individuals for no reason;

(2) That Cassidy is a morally disrespectful woman; and

(3) That Cassidy has accused Taylor of using illicit drugs.

36Cassidy says that on June 23, 2020, she discovered the October 4, 2018 Facebook post, which others “liked” or responded to.

37Cassidy amended her Statement of Claim on October 4, 2023, to include the October 4, 2018 Facebook post.

38Taylor also says that Cassidy has made numerous false, malicious, and hurtful statements about Taylor on Cassidy’s YouTube channel and TikTok account.

The TikTok Posts

39Taylor says that Cassidy made TikTok posts on September 23, 2022, December 15, 2022, December 18, 2022, January 1, 2023, and January 26, 2023 (the “TikTok posts”). In the posts, Cassidy calls Taylor:

(1) a “fucking whore”;

(2) a “pathological liar”;

(3) a “homewrecking white bitch”;

(4) a “schizophrenic”;

(5) a “dumb bitch”;

(6) a “dumb thot” (meaning “that ho over there”);

(7) a “slut”;

(8) “racist”; and says,

(9) “When this shit happens to your daughter, do not fucking cry.” (the “December 15, 2022 TikTok post”).

40In the TikTok posts Cassidy says Taylor:

(1) Stalked Cassidy;

(2) Caused other individuals to abuse and bully Cassidy;

(3) Is the reason Cassidy’s life was “hell for so many years”;

(4) Has been “harassing”, “targeting”, “smear campaigning” and “homewrecking” Cassidy;

(5) Is racist;

(6) Targeted Cassidy because of her race;

(7) Targeted Cassidy because she believed her to have autism;

(8) Is schizophrenic; and

(9) Has a “body count” higher than her age.

41Taylor says that the comments in Cassidy’s various posts about her, in their natural and ordinary meaning and by innuendo, meant and were understood to mean, inter alia :

(1) That Taylor is a racist or holds racist attitudes;

(2) That Taylor is ableist or is discriminatory towards those on the autism spectrum and/or those with disabilities;

(3) That Taylor is mentally unbalanced, ill or crazy;

(4) That Taylor is sexually promiscuous;

(5) That Taylor is a liar, deceptive and/or not to be trusted; and

(6) That Taylor committed criminal acts including, inter alia , harassment, obstruction of justice and fraud.

42Cassidy says that there are other posts on various social media platforms that she believes were made by Taylor and refer to her or are intended to harass her, including a TikTok comment by a woman saying that Cassidy has bullied innocent people, telling them to kill themselves. Cassidy alleges that Taylor has said that Cassidy told innocent people to kill themselves and bullied innocent people in the hopes that they will end their lives.

The Evidence

43This trial proceeded as a summary trial with each of the parties filing affidavits and giving viva voce evidence.

44Each party accused the other of making the various posts referred to above and each party denied making the respective posts with two exceptions. Cassidy admits she made the TikTok posts in which she appears and can be easily identified, and Taylor admits that she made the October 4, 2018 Facebook post.

45There were times when I did not find either party particularly credible. For example, Cassidy testified that it would have been impossible for her to make any defamatory posts because she was in Nova Scotia at the material times and did not have data on her mobile phone. Even under cross-examination she was very reluctant to admit that she had access to the internet via public Wi-Fi connections at various times. I find this evidence contrary to common sense and inherently unlikely. There were other times when Cassidy was evasive or took unreasonable positions, such as insisting her comments in the TikTok videos were fair comment and just “opinions”.

46Taylor was also evasive. In responding to Cassidy’s allegation that Taylor’s daughter was a product of her work as a sex worker, Taylor denied being a sex worker, but then said that her child was not conceived by “a client”. Also, Taylor denied being a racist even when confronted with posts she admitted making wherein she referred to Southeast Asian people as “Sandy curry danken fucklers” and a post saying: “Is trump fucken crazy?! Does he not realize these people dont give a shit and they will be like ok… you want to boom let’s BOOM ‘Arabic accent’”.

47Taylor did not call any witnesses.

48Cassidy called four witnesses. Although her witnesses gave evidence to refute the truth of the content of the posts made by Taylor, I did not find this evidence particularly helpful because Taylor did not raise a defence of truth or justification.

49Cassidy’s brother testified that at times she was the type of person to be malicious and put other people down. He said he thought that at times, she would be upset enough to do the things Taylor is accusing her of doing.

50Cassidy’s co-worker and friend Christian Perez testified about her kindness towards him and emotional support in times of need. He testified that he would not rush to judge her based on seeing posts on the internet. Mr. Perez testified that Cassidy was bullied at their workplace but was unable to link the bullying to any internet post(s) by Taylor.

51Cassidy’s friend Darryl Pezzack testified that her recent internet postings were very different from how he saw her to be in person. He said he would not judge her based on internet posts about her until he got to know her directly.

52Cassidy’s friend Hirah Khan testified that they met on TikTok and Cassidy presented like a person who had been defeated in life.

53There was no independent corroborative evidence as to who authored any of the posts.

54In finding the facts, I rely heavily on the contemporaneous documents because I have concerns about the credibility of the parties and the evidence of the witnesses was not particularly helpful on the critical issues in dispute.

The Issues

55There are four issues as follows:

(1) Did Taylor defame Cassidy?

(2) Did Cassidy defame Taylor?

(3) Have the limitation periods expired?

(4) What are the damages?

Analysis

56In order to obtain judgment and damages, a plaintiff in a defamation action is required to prove (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 (the “Three Elements”): Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640, at para. 28.

57If the plaintiff establishes the Three Elements then “falsity and damage are presumed”: Grant, at para. 28.

58The tort of defamation is one of strict liability. Therefore, “[t]he plaintiff is not required to show that the defendant intended to do harm, or even that the defendant was careless”: Grant, at para. 28.

59If the plaintiff proves the Three Elements, “the onus then shifts to the defendant to advance a defence in order to escape liability”: Grant, at para. 29.

60In this case, the parties do not dispute that the various posts referred to Cassidy and Taylor and were published on various social media websites.

61The parties do not dispute that the posts were defamatory with the exception of the October 4, 2018 Facebook post, which Taylor says is not defamatory.

62A statement is defamatory if it has a tendency to lower the person’s reputation in the eyes of ordinary right-thinking members of society: Awan v. Levant, 2014 ONSC 6890, at paras. 80-81, citing Botiuk v. Toronto Free Press Publications Ltd., [1995] 3 S.C.R. 3, at para. 62; Color Your World v. Canadian Broadcasting Corp. (1988), 38 O.R. (3d) 97 (C.A.), at para. 14, as cited in Manson v. John Doe, 2013 ONSC 628, 114 O.R. (3d) 592, at para. 21.

63The October 4, 2018 Facebook post refers to Cassidy by derogatory names, claims that Cassidy has spread vicious lies about Taylor, suggests Cassidy has mental health issues, and says that everyone agrees she is “an annoying nutcase”.

64I find that the comments in the October 4, 2018 Facebook post to the effect that Cassidy is a liar who spreads false rumors, would have a tendency to lower Cassidy’s reputation in the estimation of ordinary right-thinking members of society.

65I find that all of the following posts were defamatory: the April 15, 2014 thedirty.com post, the July 24, 2014 thedirty.com post, the August 4, 2018 thedirty.com post, the October 4, 2018 Facebook post, and the TikTok posts.

66Neither party claimed the posts were true or made in circumstances attracting any privilege. The only defences raised were the limitation period defences and the defence of fair comment raised by Cassidy with respect to her TikTok posts, which I address below.

67The main issue in this case was whether the posts were authored by the parties.

68I have considered all of the evidence, including the affidavits filed by the parties, the viva voce evidence, and the tone, content and timing of the various posts.

69Considering the evidence as a whole, I find that the posts are a series of comments by the parties, often in response to each other, whereby these two former friends hurled insults back and forth in an angry, malicious and vindictive exchange.

70The posts contain personal details, names of friends, family members or acquaintances of the parties, and details of events that the parties either agree, or do not dispute, occurred while they were friends. For example, the April 15, 2014 thedirty.com post by Cassidy refers to Taylor as being 18 years old, having dropped out of high school, and having lived in Brampton with her boyfriend, who is named in the post. It also refers to the fact that Cassidy and Taylor lived together for a time. The July 24, 2014 thedirty.com post by Taylor refers to the TNA bag of condoms that Cassidy had at her house, Cassidy’s “pregnant mother”, and Cassidy’s Greek heritage. The October 4, 2018 Facebook post by Taylor refers to the fact that Cassidy and Taylor were friends in high school and says the present time is six years later. The October 4, 2018 Facebook post refers to “Milton people”, which is where Cassidy lived.

Posts by Cassidy

71The posts by Cassidy contain similar themes. For example, all of the April 15, 2014 thedirty.com post, the August 4, 2018 thedirty.com post and at least one TikTok post make remarks about Taylor’s alleged promiscuity, alleged mental health conditions, and make negative comments about Taylor’s body.

72The April 15, 2014 thedirty.com post and the TikTok posts refer to Taylor’s lack of intelligence, calling her “stupid”.

73The story of Taylor having sex with a man in a bush while Cassidy waited in the car is repeated in both the April 15, 2014 thedirty.com post and the TikTok posts.

74The posts by Cassidy contain similar language. For example, all of the April 15, 2014 thedirty.com post, the August 4, 2018 thedirty.com post and at least one TikTok post refer to Taylor as “Thotvello” or “thot” and use the phrases “stupid ass” or “dumb ass”.

75The posts respond to posts by Taylor and make similar allegations. For example, Taylor’s July 24, 2014 thedirty.com post refers to Cassidy as stealing boyfriends and Cassidy’s TikTok posts refer to Taylor as a “homewrecker” and breaking up relationships. Taylor’s July 24, 2014 thedirty.com post says that Cassidy will exchange sex for drugs and Cassidy says in her August 4, 2018 thedirty.com post that Taylor is a sex worker.

Posts by Taylor

76The posts by Taylor contain similar themes and language. For example, the July 24, 2014 thedirty.com post and the October 4, 2018 Facebook post both refer to parts of the female anatomy using profanity, call Cassidy names, say she is lying and comment on her mental health, calling her a “crazy psycho” and a “nutcase”.

77Taylor’s posts respond to posts by Cassidy and make similar allegations. For example, in the April 15, 2014 thedirty.com post, Cassidy says that Taylor lies about her ethnic background (“half-trini though her ‘father’”) and in the July 24, 2014 thedirty.com post Taylor says that Cassidy lies about her ethnic background (Greek when she is really French and Italian).

78In the April 15, 2014 thedirty.com post, Cassidy says that Taylor has a “loose pussy”, and this specific phrase is used by Taylor referring to Cassidy in the July 24, 2014 thedirty.com post.

79In the April 15, 2014 thedirty.com post Cassidy uses the phrase “cough cough” before naming Taylor and in the October 4, 2018 Facebook post Taylor uses the phrase “cough cough” before naming Cassidy.

80The tone, content, and timing of the posts lead me to the conclusion that they were made by Cassidy and Taylor respectively.

81I find that Cassidy has established, on a balance of probabilities, that Taylor was the author of the July 24, 2014 thedirty.com post and the October 4, 2018 Facebook post.

82I find that Taylor has established, on a balance of probabilities, that Cassidy was the author of the April 15, 2014 thedirty.com post, the August 4, 2018 thedirty.com post and the TikTok posts.

Limitation Periods

83Section 5(1) of the Libel and Slander Act, R.S.O. 1990, c. L. 12 (the “LSA”) provides as follows:

5 (1) No action for libel in a newspaper or in a broadcast lies unless the plaintiff has, within six weeks after the alleged libel has come to the plaintiff’s knowledge, given to the defendant notice in writing, specifying the matter complained of, which shall be served in the same manner as a statement of claim or by delivering it to a grown-up person at the chief office of the defendant.

84In St. Lewis v. Rancourt, 2015 ONCA 513, 337 O.A.C. 15, the court dealt with the application of the LSA to an internet blog. It stated that the onus is on the party alleging that the LSA applies to call evidence that the statements or posts fell within the definition of “broadcast”. In the face of no evidence to establish this, the court ordered the matter to trial: at para. 8.

85Similarly, in Levant v. Day, 2017 ONSC 5956, 17 C.P.C. (8th) 183, at paras. 45-46, the court was not prepared to extend the definition of “broadcast” to include social media (in that case specifically, Twitter) given the lack of evidentiary background:

The legislative provision in the Act refers to libel in a newspaper or in a broadcast. There is no case law that interprets this provision to include social media. The defendant asks this Court to extend the Libel and Slander Act which uses these words and was originally intended to apply the media of the times to a new telecommunication technology. The defendant seeks to have this Court extend "broadcast" to social media such as Twitter.

However, the parties have not provided this Court with any evidence regarding the nature, characteristics and functioning of the Twitter technology, nor have the parties provided any social policy reasons for interpreting or extending the meaning or definition of broadcast to include Twitter. The Court is not prepared to take judicial notice of these things. This Court is not prepared to make such a determination absent such evidence. [Emphasis added.]

86In Nanda v. McEwan, 2019 ONSC 125 (Div. Ct.), the court dealt with whether statements on WhatsApp, an online chat platform, are considered “broadcasts” within the meaning of the LSA and thus subject to the s. 5 notice requirement. After reviewing the leading authorities, Ricchetti J. (as he then was) concluded that “there must be clear, ample evidence for the court to make the determination whether the distributed statement(s) at issue in the particular case constituted a ‘broadcast’ under the Act. These courts determined the actions should not be dismissed without such evidence and ordered the actions proceed to trial”: at para. 77. As such, the court held that the deputy judge erred in finding that the statements on WhatsApp constituted a broadcast.

87Other Ontario courts have refrained from determining whether technology such as social media platforms constitute “broadcasts” under the LSA: see for example Caplan v. Atas, 2021 ONSC 670, 71 C.C.L.T. (4th) 36, at paras. 151-54; Kam v. CBC, 2021 ONSC 1304, at paras. 65-68; and Marcellin v. LPS et al., 2022 ONSC 5886, at paras. 178-79, reversed on other grounds, 2024 ONCA 468.

88In this case, neither party submitted that the various posts that are the subject of this action are “broadcasts” under the LSA such that notice is required under s. 5 of the LSA and no evidence on this point was led.

89There is also the requirement in s. 7 of the LSA that the broadcast be from a station in Ontario. I have no evidence as to where the servers for the internet sites involved in this case are located.

90In the absence of an evidentiary background, I do not find that the posts were “broadcasts”. Only the basic limitation period applies as set out below.

Cassidy’s Claims

91Defamation claims are subject to a two-year limitation period under the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B. Section 4 contains the basic two-year limitation period and provides: “Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.”

92Section 5(1)(a)(i) provides that “[a] claim is discovered on the earlier of, (a) the day on which the person with the claim first knew, (i) that the injury, loss or damage had occurred”.

93Cassidy’s evidence is that she discovered the July 24, 2014 thedirty.com post on July 29, 2018. Cassidy’s claim was issued on January 16, 2020.

94Taylor says Cassidy discovered the July 24, 2014 thedirty.com post the day it was made or on November 15, 2024, the date that the Comment was made on it.

95During the trial, Cassidy gave evidence that Lina sent her the July 24, 2014 thedirty.com post on July 29, 2018, and that was the first time she learned of its existence.

96At trial Cassidy produced a copy of a photograph of the July 24, 2014 thedirty.com post which she says she took when Lina first sent it to her (the “Screenshot”). The Screenshot shows both the time and the date July 29, 2018. Cassidy sought to introduce the Screenshot into evidence.

97Taylor objected to the introduction into evidence of the Screenshot under r. 53.08(2) because it was not disclosed under r. 30.08(1), which provides that where a party fails to disclose a document in an affidavit of documents or in supplementary affidavit and the document is favourable to the party’s case, the party may not use the document at the trial except with leave of the trial judge. When Taylor raised this issue at trial, I heard submissions from both parties and reserved my decision.

98Cassidy produced a copy of a screenshot of the July 24, 2014 thedirty.com post that shows the time of 10:35 a.m. but not the date. She did not include the Screenshot (with the date July 29, 2018) in her Affidavit of Documents as required by r. 30.08(1). However, she did disclose the existence of the Screenshot with the date at her examination for discovery when she was examined by Taylor’s counsel. Counsel for Taylor (who was a different lawyer than counsel at trial) saw the Screenshot but did not request a copy.

99It is the plaintiff’s obligation to produce all relevant documents. Rule 53.08 provides that leave is required where there is a failure to disclose a document. In the circumstances of this case, Taylor has not suffered prejudice because she was aware, through her lawyer, of the existence of the Screenshot with the date well in advance of the trial. Therefore, Cassidy is granted leave to admit the Screenshot into evidence.

100Even though I admit the Screenshot into evidence, it does not prove when Cassidy first saw the post, it merely establishes that the Screenshot was taken on July 29, 2018.

101I find that Cassidy made the November 15, 2014 Comment. It addresses Taylor by her first and last name even though the July 24, 2014 thedirty.com post is anonymous. It uses similar phrases and wording to Cassidy’s comments in her TikTok posts where Cassidy says, “I have exposed you” and “all of this is a lie”. Reading the posts all together, it is obvious that Cassidy is commenting on Taylor’s July 24, 2014 thedirty.com post, which is a response to Cassidy’s April 15, 2014 thedirty.com post, which “exposes” Taylor’s alleged lies and dishonest acts.

102I do not accept Cassidy’s evidence that she discovered the claim on July 29, 2018. Cassidy discovered her claim regarding the July 24, 2014 thedirty.com post when she made the November 15, 2014 Comment.

103Therefore, the limitation period has expired on Cassidy’s claim with respect to the July 24, 2014 thedirty.com post.

104Cassidy pleads in her Amended Statement of Claim that she discovered the October 4, 2018 Facebook post on June 23, 2020. Cassidy’s claim was amended on October 4, 2023. The limitation period relating to the October 4, 2018 Facebook post expired before Cassidy’s claim was amended, even with the suspension of limitation periods due to the COVID-19 pandemic from March 16, 2020 to September 13, 2020: Limitation Periods, O. Reg. 73/20.

105The expiry of the limitation periods is a complete defence to Cassidy’s claim.

Taylor’s Counterclaims

106The April 15, 2014 thedirty.com post and the August 4, 2018 thedirty.com post were made more than two years before the Statement of Defence and Counterclaim was issued on February 22, 2024.

107Taylor asserts that she saw these posts shortly after they were made but that she only discovered they were made by the plaintiff in November 2022 and her counterclaim is not statute barred pursuant to s. 5(1)(a)(iii) of the Limitations Act, 2002.

108Section 5(1)(a)(iii) provides that “[a] claim is discovered on the earlier of, (a) the day on which the person with the claim first knew (iii) that the act… was that of the person against whom the claim is made”.

109I do not accept that Taylor only discovered that Cassidy was the author of the April 15, 2014 thedirty.com post and the August 4, 2018 thedirty.com post in November 2022.

110As I said previously, Taylor’s July 24, 2014 thedirty.com post is in response to Cassidy’s April 15, 2014 thedirty.com post.

111In her October 4, 2018 Facebook post, Taylor names Cassidy and refers to the allegations made by Cassidy in the August 4, 2018 thedirty.com post. Taylor also refers to the fact that they were friends in high school.

112In her evidence, Taylor admitted that she wrote the October 4, 2018 Facebook post as part of an emotional reaction to Cassidy’s online abuse. She referenced Cassidy’s YouTube channel where Cassidy said Taylor was a drug user and talked about Taylor’s daughter. I do not accept Taylor’s evidence that, when she made the October 4, 2018 Facebook post, she was not aware that Cassidy was the author of the April 15, 2014 thedirty.com post and the August 4, 2018 thedirty.com post.

113I find that Taylor knew on July 24, 2014, or at the latest October 4, 2018, that Cassidy was the author of the April 15, 2014 thedirty.com post and the August 4, 2018 thedirty.com post. The limitation period with respect to these two posts has expired.

114The expiry of the limitation periods is a complete defence to Taylor’s claims regarding the April 15, 2014 thedirty.com post and the August 4, 2018 thedirty.com post.

115There are no issues regarding the limitations period for the TikTok posts made by Cassidy.

Defence of fair comment

116The constituent elements of the defence of fair comment are:

(a) the comment must be on a matter of public interest;

(b) the comment must be based on fact;

(c) the comment, though it can include inferences of fact, must be recognizable as comment;

(d) the comment must satisfy the following objective test: could any person honestly express that opinion on the proved facts? and

(e) even though the comment satisfies the objective test, the defence can be defeated if the plaintiff proves that the defendant was subjectively actuated by express malice.

See WIC Radio Ltd. v. Simpson, 2008 SCC 40, [2008] 2 S.C.R. 420, at para. 28.

117Cassidy’s statements in the TikTok posts are not fair comment. The statements in the TikTok posts are not on matters of public interest. Cassidy has not proven that they are based on fact, are recognizable as comment or that any person could honestly express those opinions based on proven facts. In addition, it is obvious from the content of the posts that Cassidy was motivated by malice.

Damages for Defamation

Taylor’s Damages

118General damages are presumed from the very publication of the false statements and are awarded at large: Hill v. Church of Scientology Toronto, [1995] 2 S.C.R. 1130, at para. 164. As stated in James Bay Resources Limited v. Mak Mera Nigeria Limited, 2023 ONSC 6844, at para. 277:

The standard factors to consider in determining the quantum of damages for defamation include the plaintiff’s position and standing, the nature and seriousness of the defamatory statements, the mode and extent of publication, the absence or refusal of any retraction or apology, the whole conduct and motive of the defendant from publication through judgment including trial, and any evidence of aggravating or mitigating circumstances: 122164 Canada Ltd. v. C.M. Takacs Holdings Corp., 2012 ONSC 6338, at para. 20, citing Barrick Gold Corporation v. Lopehandia (2004), 71 O.R. (3d) 416 (C.A.), at para. 29; Skafco, at paras. 29-30; and Hill, at para. 183.

119The conduct of the plaintiff is also relevant: Clancy v. Farid, 2023 ONSC 2750, 92 C.C.L.T. (4th) 234, at paras. 37-38.

120Courts have repeatedly emphasized that each libel case is unique and there is “little to be gained from a detailed comparison of libel awards: Rutman v. Rabinowitz, 2018 ONCA 80, 420 D.L.R. (4th) 310, at para. 83, citing Hill, at para. 18, and Botiuk, at para. 105.

121Aggravated damages may be awarded in circumstances where the defendant’s conduct has been particularly high handed or oppressive, thereby increasing the plaintiff's humiliation and anxiety arising from the defamatory statements: Hill, at para. 188. There must be a finding that the defendant was motivated by actual malice, which increased injury to the plaintiff: Hill, at para. 190. These damages consider the additional harm caused to the plaintiff’s feelings by the defendant’s outrageous and malicious conduct.

122I will assess Taylor’s damages with respect to the TikTok posts.

123Taylor is a 28-year-old woman. She is currently enrolled in a Community Services Worker program and doing a placement at Good Shephard, which specializes in addictions. Taylor did not lead any other evidence about her position or standing in the community.

124Taylor says she has suffered humiliation and anxiety. Taylor testified that she is a survivor of childhood abuse and pornography. She said that the TikTok posts triggered her pre-existing complex post-traumatic stress disorder, causing depression and problems sleeping. She felt low and had to go back on medication. Taylor did not provide any medical evidence to substantiate these damages.

125Aggravating factors include the fact that the statements were serious and there was no retraction or apology.

126There are several mitigating factors.

127The statements were published on TikTok. While defamatory statements on the internet have the potential for widespread dissemination, social media posts containing comments of this nature would not have the same impact on reputation that a credible source would have: James Bay Resources Limited, at para. 152.

128There was no evidence of the importance of, or any impact on, Taylor’s personal or professional reputation.

129There was no evidence about the extent of publication or number of times the posts were viewed. There was no evidence from anyone who saw the posts. Taylor did not say that anyone spoke to her about the posts.

130There was no evidence of any financial losses.

131It is doubtful that the TikTok posts by Cassidy about Taylor would be taken at face value by any right-thinking person.

132Taylor also made angry, malicious, and vindictive defamatory posts about Cassidy. While she has avoided liability for her posts as they are statute barred, I find that they are relevant as part of a consideration of Taylor’s conduct and a mitigating factor.

133I assess Taylor’s general damages for the TikTok posts to be $25,000.

134In the event that I am wrong about the expiry of the limitation period for Taylor’s damages arising from the April 15, 2014 thedirty.com post and the August 4, 2018 thedirty.com post, I will assess Taylor’s damages arising from these claims.

135Taylor says that after reading the April 15, 2014 thedirty.com post. she was in a very dark place. It was the same week as her grandmother’s funeral and she resorted to drugs and alcohol to cope. Taylor says she moved away from Milton as she did not want to live there with her daughter with the information that was circulating.

136There was no other evidence regarding damages flowing from the April 15, 2014 thedirty.com post or the August 4, 2018 thedirty.com post and I would award Taylor additional damages in the amount of $10,000 with respect to these two posts, if the limitation periods had not expired.

137In this case, the compensatory damages award is an adequate remedy and aggravated or punitive damages are not appropriate. In addition to the reasons set out above, aggravated and punitive damages are not appropriate because Taylor also made serious and malicious defamatory posts about Cassidy, and the court is entitled to take this into account: Daboll v. DeMarco, 2011 ONSC 1, 81 C.C.L.T. (3d) 145, at paras. 51, 53. See also: Hayer v. Charhdi Kala Punjabi Newspaper Society (1990), 1996 CarswellBC 1463 (S.C.), at para. 27 citing Kelly v. Sherlock (1886), L.R. Q.B. 686 at p. 698. Taylor has avoided a judgment only because of the expiry of the limitation periods.

Cassidy’s Damages

138Given that I have found that the limitation period has expired with respect to Taylor’s July 24, 2014 thedirty.com post and October 4, 2018 Facebook post, I do not award any damages to Cassidy. In the event that I am wrong, I will assess Cassidy’s damages.

139Cassidy says that she has suffered significant damages. Cassidy says her mental health has suffered, she has problems sleeping and she has been depressed.

140Cassidy says she has been harassed and bullied and she attributes this to the defamation by Taylor. Cassidy says she has lost friends and contacts as a result of the defamation. However, these statements are based entirely on Cassidy’s subjective beliefs, and she did not offer any evidence or particulars to support them.

141Cassidy is concerned that the July 24, 2014 thedirty.com post will negatively impact her opportunity for a field placement in her social work course. She is currently not enrolled in school as she voluntarily withdrew from the program, but she hopes to go back.

142Cassidy says she admitted herself to Etobicoke General Hospital on April 28, 2021, because she was depressed and had thoughts of suicide. She was admitted for 48 hours and has subsequently used cannabis to cope with feelings of sadness and depression as well as to help her sleep. Cassidy did not provide any medical evidence to substantiate these damages.

143The aggravating and mitigating factors which apply to Taylor’s posts also apply to Cassidy’s posts, with the exception that Taylor testified that she was sorry that she made the October 4, 2018 Facebook post. At trial, Taylor continued to deny that she was the author of the July 24, 2014 thedirty.com post.

144If I am wrong about the limitation periods having expired, I would award Cassidy $25,000 in general damages.

Injunctions

145I find that it is appropriate to issue the requested injunctions against both parties.

146I see a real risk that both Cassidy and Taylor could do this again: Paramount v. Kevin J. Johnson, 2019 ONSC 2910, at para. 84; Astley v. Verdun, 2011 ONSC 3651, 106 O.R. (3d) 792, at para. 21; and Barrick Gold Corp., at para. 78.

147The website thedirty.com no longer exists.

148I order Cassidy to remove or attempt to have removed the TikTok videos and any other internet posts containing defamatory comments about Taylor, and I permanently enjoin her from disseminating, posting on the Internet, publishing, or broadcasting in any manner whatsoever, either directly or indirectly, any defamatory statements concerning Taylor.

149I order Taylor to remove or attempt to have removed the October 4, 2018 Facebook post and any other internet posts containing defamatory comments about Cassidy, and I permanently enjoin her from disseminating, posting on the Internet, publishing, or broadcasting in any manner whatsoever, either directly or indirectly, any defamatory statements concerning Cassidy.

Other Torts

150Taylor claims that Cassidy has committed the tort of publicly placing her in a false light.

151This tort was recognized by this court in Yenovkian v. Gulian, 2019 ONSC 7279, 62 C.C.L.T. (4th) 45, at para. 170, as follows:

One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy, if

(a) the false light in which the other 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 other would be placed.

152In Yenovkian, the court noted that the publicity giving rise to this tort will often but not necessarily be defamatory: “The wrong is in publicly representing someone, not as worse than they are, but as other than they are”: at para. 171.

153In this case Cassidy presented Taylor as, among other things, a racist, a criminal and a stalker. This is a false light that would be highly offensive to a reasonable person. Cassidy either knew or acted in reckless disregard as to the falsity of her posts.

154I have already found that the posts by Cassidy are defamatory. I do not find that the damages Taylor claims for placing her in a false light are distinct from those flowing from the defamation. I do not award any additional damages for this tort.

155Taylor also claims that Cassidy has committed the tort of public disclosure of private facts, being Taylor’s involvement with the Children’s Aid Society and private family matters.

156The elements of the cause of action for public disclosure of private facts are:

(1) The defendant publicized an aspect of the plaintiff’s private life;

(2) The plaintiff did not consent to the publication;

(3) The matter publicized or its publication would be highly offensive to a reasonable person; and

(4) The publication was not of legitimate concern to the public.

See Yenovkian, at para. 168, citing Jane Doe 72511 v. Morgan, 2018 ONSC 6607, 143 O.R. (3d) 277.

157Cassidy publicized the fact that Taylor was abused as a child and that the Children’s Aid Society was involved in her care. These are private facts and are not of legitimate concern to the public. Taylor did not consent to the publication. Publicizing, without consent, that a person was abused as a child would be highly offensive to a reasonable person.

158I award Taylor additional damages in the amount of $5,000 for public disclosure of private facts.

Abuse of Process

159Taylor says that Cassidy’s action is an abuse of process, having been commenced for a collateral purpose to punish Taylor and provide provocative content for Cassidy’s social media campaign of defamation and harassment.

160Having found that the limitation period has expired with respect to the July 24, 2014 thedirty.com post and the October 4, 2018 Facebook post, I do not need to decide whether Cassidy’s action is an abuse of process.

161Even if I am wrong about the expiry of the limitation periods, I do not find that Cassidy commenced this action for a collateral purpose. I have found that Taylor’s posts are defamatory and would dismiss Taylor’s claim for damages for abuse of process.

Costs

162If the parties cannot agree on the issue of costs, I will consider brief written submissions. These costs memoranda shall not exceed three pages in length (not including any bill of costs or offers to settle). The Defendant shall file her costs submissions within 15 days of the date of this endorsement. The Plaintiff shall file her costs submissions within 15 days of the receipt of the Defendant’s materials. The Defendant may file a brief reply within five days thereafter. If submissions are not received by August 30, 2024, the file will be closed and the issue of costs considered settled.

Merritt J.