



COURT OF APPEAL FOR ONTARIO

CITATION: Hategan v. Frederiksen, 2022 ONCA
    217

DATE: 20220314

DOCKET: M53145 (C69160)

Pardu
    J.A. (Motion Judge)

BETWEEN

Elisa
    Romero Hategan

Plaintiff (Appellant)

and

Elizabeth
    Moore Frederiksen and Bernie Farber

Defendants (Respondents)

Joseph Kary, for the appellant

Alexi Wood and Lillianne Cadieux-Shaw,
    for the respondent Elizabeth Moore Frederiksen

Mark Freiman, for the respondent Bernie
    Farber

Heard: February 28, 2022, by video conference

ENDORSEMENT

[1]

The appellant moves for an order setting aside the Registrars dismissal
    of her appeal and asks for extra time to perfect the appeal.

[2]

The respondents ask that the motion be dismissed. They submit that the
    appeal has no merit, and that the appellant has not adequately explained the
    delay.

The Judgment below

[3]

On February 3, 2021, the motion judge dismissed the appellants claims
    on a summary judgment motion, awarded judgment for damages for defamation
    against her and granted a permanent injunction against her. The terms of the
    injunction restrained the appellant from making or publishing any statement
    referring to the respondent Elizabeth Moore Frederiksen
[1]
and required her to remove all online statements she has made about Frederiksen,
    release all domain names she had created using Frederiksens name and refrain
    from using any online identifier containing that name. The appellant served a
    Notice of Appeal on March 3, 2021, and filed it two days later. On March 26,
    2021, the motion judge ordered her to pay costs and confirmed the permanent
    injunction.

The nature of the action

[4]

Both the appellant Elisa Romero Hategan and the respondent Frederiksen
    are former active members of Heritage Front, an extremist neo-Nazi group. Each
    says that they had a difficult childhood or adolescence. They both became
    disillusioned with the group and left. After leaving, both women have spoken
    publicly against extremism and hate groups. The appellant feels that
    Frederiksens public persona amounts to an appropriation of the appellants own
    identity as an anti-hate speaker. The appellant feels that Frederiksens
    appearance and her religious and sexual identity have been assumed to steal the
    appellants life and accomplishments.

[5]

The appellant relied upon a public statement made by the respondent
    Bernie Farber for the foundation of her action against him. On September 19,
    2017, Farber appeared on a television show,
The Agenda
,

and
    made the following statement:

By the way [Frederiksen] was one of
    a couple women that were involved in the Heritage Front, both of whom,
    actually, [Frederiksen] and another young woman by the name of [Hategan], both
    of them ended up being heroes in terms of how they were able to take themselves
    out, how they were able to work the system, to basically shut down the Heritage
    Front. And so in this particular case, itss [sic] kind of interesting that the
    women were the heroes in shutting this down. There were others involved as
    well, the Bristol Affair, he was the mole. All of this came together as a
    result of the women who full timely took a stand and said, were not going to
    deal with this anymore.

[6]

The appellant sued both respondents for damages for the torts of wrongful
    appropriation of personality, civil conspiracy, injurious falsehood, negligence
    and unlawful interference with economic interests. She did not sue for
    defamation.

Positions of the parties before the motion judge

(1)

The appellants position

[7]

The appellant took the position that summary judgment was not
    appropriate because there were major credibility issues that required a trial
    to resolve the many inconsistencies and contradictions in the voluminous evidence
    filed on the motion. The legal issues were complex and it would be unfair to
    proceed by way of summary judgment before documentary production. The appellant
    asserted that Frederiksen lifted facts, storylines and key pieces of the
    appellants life story and falsely passed them off as her own lived
    experience for commercial profit. The appellant believes that she was the
    only young woman who played any role whatsoever in the collapse of the
    Heritage Front.

[8]

The appellant asserted that Farber and Frederiksen worked together to
    cultivate the latters brand, thereby appropriating the appellants life story.
    The appellant argued that since Farber filed no evidence on the motion, his
    motion for summary judgment should be dismissed.

[9]

The appellant argued that the respondent Frederiksens motion for
    summary judgment on the counterclaim for defamation should be dismissed for the
    same reasons.

[10]

The
    appellant asserted that there were genuine issues requiring a trial of these
    claims, including whether limitation periods barred any of the claims and other
    defences.

(2)

The respondents positions

[11]

The
    respondents took the position that a credibility assessment was not required.
    Even if the appellants evidence was accepted as true, which they denied, the
    evidence did not support any actionable claim. They took the position that the
    appellants claim was based on speculation, unfounded allegations, and
    conspiracy theories. They argued that the elements of the causes of action
    asserted by the appellant were not supported by evidence. They argued that
    Frederiksen was entitled to speak about her own life experiences. There was no
    evidence that Frederiksen had misrepresented her own life experiences in any
    material respect. The claim for civil conspiracy was similarly based on an
    allegation that the respondents had made and endorsed false representations
    that Frederiksen had undergone experiences with the Heritage Front like those
    asserted by the appellant. They argued there was no evidence of any agreement
    between the respondents that could amount to a conspiracy and no evidence of
    any unlawful act against a third party which was intended to target the
    appellant. They argued that there was no duty of care owed that could found a
    claim in negligence, nor any standard of care nor breach nor damages
    identified.

[12]

The
    respondent Farber reiterated that his comments on the television broadcast were
    incapable of supporting the causes of action alleged. There was no other
    evidence capable of supporting any of the pleaded torts and no evidence of any
    damages arising from any alleged acts by him. There was no evidence of false
    statements by Farber or any agreement that could amount to a conspiracy.

[13]

On
    the counterclaim, the respondents argued that it was uncontestable that the
    statements were defamatory, that they had been published by the appellant and
    that they would tend to lower the reputation of the respondents in the eyes of
    a reasonable person. They argued that the defence of justification was not
    available because the appellant failed to provide any evidence that the
    defamatory statements were true. They submitted that the defence of fair
    comment was not available as the statements were clearly published with malice.
    Frederiksen argued that the appellant had appropriated her identity by
    registering multiple names for website and social media groups using
    Frederiksens name and further that the appellant had threatened to sue others
    who proposed to engage Frederiksen to speak.

[14]

Frederiksen
    argued that a permanent injunction was necessary to end the appellants long
    running campaign to ruin her reputation, which did not lessen even after the
    counterclaim was brought and continued after a consent interim order
    restraining her from defaming Frederiksen was made. The appellant stated she
    had nothing left to lose, no assets to lose in a libel case, and that she would
    continue to speak.

The motion judges decision

[15]

The
    motion judge rejected the arguments advanced by the appellant and found for the
    respondents on the counterclaim. She ruled that summary judgment in favour of
    the respondents was appropriate.

(1)

The claims against Farber

[16]

She
    concluded that Farbers opinion expressed in the television broadcast was not
    untrue and was incapable of supporting the torts alleged and that there was no
    evidence of damage. She held there was no evidence of an agreement that could
    amount to a conspiracy. The opinions expressed about events in the past in the
    broadcast could not be construed as appropriation of the appellants name or
    image for commercial purposes. Similarly, the claim of unlawful interference
    with economic interests was based on allegations of false public statements
    about Frederiksens life, said to amount to appropriations of the appellants
    life. There was no duty of care owed to support a claim in negligence. She
    concluded that the claim against Farber was frivolous and vexatious.

(2)

The claims against Frederiksen

[17]

The
    motion judge held that Frederiksen was entitled to speak about her own life
    experiences and that this was not an actionable wrong. The evidence was that
    Frederiksen had only ever spoken truthfully about her own life. This did not
    amount to unauthorized use of a name or likeness of a person as a symbol of
    [her] identity. Even taking the appellants evidence at its highest, there was
    no evidence of false statements by Frederiksen which underlay the claims for
    injurious falsehood and civil conspiracy, no evidence of an agreement to
    support the allegation of conspiracy, and no evidence of an unlawful act
    directed at a third party to support the claim on interference with economic relations.
    There was no basis to find a duty in negligence, no standard of care or breach
    identified, and no evidence of any loss.

[18]

The
    motion judge held that the defamatory statements the appellant made about the
    respondent Frederiksen were not true, and that they were made maliciously and
    with abusive intent. The motion judge awarded global damages of $100,000
    together with $50,000 for aggravated damages and $50,000 for punitive damages
    to Frederiksen for defamation, breach of confidence, appropriation of Frederiksens
    name on websites and social media sites and interference with her economic
    relations. She agreed that a permanent injunction was necessary to restrain the
    appellants behaviour and invited counsel to make submissions as to the form of
    the order.

The delay following the summary judgment

[19]

The
    appellant submits that she manifested an intention to appeal by serving and
    filing a notice of appeal from the summary judgment on March 3, 2021 and March
    5, 2021 respectively. She says that she mistakenly thought she had 60 days
    after the receipt of the transcripts of the summary judgment hearing to perfect
    the appeal. There was no transcript of the hearing; it proceeded on a written
    record. Pursuant to Rule 61.09(1)(a) of the
Rules of Civil
    Procedure
, R.R.O.
    1990, Reg. 194,
she was required to perfect her appeal within 30
    days from March 5, 2021. On April 6, 2021, the Registrar of this court gave
    notice to the appellant of an intention to dismiss the appeal for delay,
    pursuant to Rule 61.13 (2.1). The notice gave her an extension to April 28,
    2021, to perfect the appeal and explained how to obtain a further extension if
    requested before that date. She was warned that the Registrar intended to
    dismiss the appeal if it was not perfected or the time was not otherwise
    extended.

[20]

On
    April 8, 2021, counsel emailed the appellant to advise her of the rules to
    perfect her appeal, and warning that unless perfected there would be a motion
    to dismiss the appeal for delay. On cross examination on the appellants
    affidavit on this motion, the respondents learned that the appellant had
    retained Mr. Kary as her fourth counsel in mid-April, close to the date of the
    email, although that was not communicated to the respondents until May 12,
    2021.

[21]

Counsel
    for Frederiksen wrote to the court on April 16, 2021, to ask for an opportunity
    to make submissions if the appellant asked for a further extension to perfect
    the appeal.

[22]

Nothing
    happened over the following weeks and on May 3, 2021, counsel for Frederiksen
    wrote to the court to ask if the matter had been dismissed for delay, copying
    the appellant on that correspondence.

[23]

On
    May 12, 2021, Mr. Kary wrote to advise that he was now acting for the appellant
    and asked for more time to perfect the appeal. Frederiksens counsel advised
    that the respondents would not consent.

[24]

Mr.
    Kary did not respond. On May 26, 2021, counsel for Frederiksen wrote to the
    court inquiring about the dismissal for delay, and followed up with another
    letter on July 1, 2021, with copies to both Mr. Kary and the appellant. There
    was no response indicating that they intended to pursue the appeal.

[25]

On
    July 21, 2021, the Registrar dismissed the appeal for delay because it had not
    been perfected. On August 18, 2021, the appellants counsel advised that he was
    bringing a motion to set aside the administrative dismissal. He still had not
    filed a notice confirming that he was now counsel of record. Counsel on both
    sides initially agreed to a motion date of October 1, 2021. Frederiksens
    counsel suggested a timetable for various steps to ensure that date could be
    met. The appellants counsel did not provide his motion materials until October
    8, 2021.

[26]

Cross
    examinations were initially set for October 20, 2021, however the appellants
    counsel indicated that he intended to file a further affidavit in reply which
    had not been contemplated by the initial timetable. Counsel for the Frederiksen
    asked that the affidavit be delivered by October 25, 2021, so that cross
    examinations could deal with all of the appellants evidence. Cross
    examinations were conducted on October 27, 2021.

[27]

I
    admit the fresh evidence proffered by the respondents consisting of
    correspondence between counsel to illustrate how events unfolded after cross examinations.
    On November 4, 2021, counsel for Frederiksen wrote to appellants counsel to
    ask if he had arranged for a date for argument of the motion. She provided him
    with transcripts of the cross examination the next day and extended the
    timetable to give the appellants counsel until November 12, 2021, to deliver
    his factum, still hoping that the motion could be heard before the end of the
    year.

[28]

On
    November 12, 2021, counsel for the appellant advised his factum was not yet
    complete and that he had not yet secured the motion date. He delivered his
    factum on November 15, 2021. On December 10, 2021, he advised that he would not
    be able to bring the motion before the end of the year.

[29]

Counsel
    for the appellant advised that he had obtained a date for the motion of January
    11, 2022, but that this was intended to be a placeholder date only and that it
    was not his intent to file the material with the Court any time in the
    immediate future. I am neither confirming or agreeing to the date at this time.
    He was hopeful that if another matter requiring Frederiksens counsels
    attention settled, the motion could still be argued in December 2021, but later
    indicated that personal issues on his part and his clients absence meant that
    the motion could not proceed in December.

[30]

On
    December 7, 2021, the respondents offered to amend the terms of the injunction
    to allow the appellant to communicate with her medical and mental health
    advisors, to respond to concerns about the breadth of the injunction. They
    asked the appellants counsel to provide a draft document to reflect their
    acceptance of his proposal to effect this by way of agreement, rather than an
    amendment to the judgment. No such document was ever forthcoming.

[31]

The
    appellant ultimately brought a motion returnable January 11, 2022, some 13
    months after the judgment.

The Grounds of Appeal

[32]

The appellant challenges the motion judges
    decision on many grounds. Her initial Notice of Appeal lists 38 paragraphs of
    grounds of appeal, many of them compounding multiple criticisms of the judgment
    and the motion judge. Her supplementary Notice of Appeal adds 15 more
    paragraphs alleging error.

[33]

While the appellants counsel indicates that he
    takes no issue with any of the factual findings made by the motion judge, he
    submits that she did not follow the procedure mandated by
Hryniak v.
    Mauldin
, 2014 SCC 7, [2014] 1 S.C.R.
    87

for fact finding on a summary judgment motion and that
    the judgment must be set aside on that ground. He submits that the motion judge
    necessarily evaluated credibility and weighed competing evidence.

[34]

He submits that the injunction granted
    restraining the appellant from speaking about Frederiksen was too broad and
    that such relief should only be granted in the clearest of cases. He submits
    that the motion judges reasons finding the appellant liable on the
    counterclaim were insufficient and failed to address the allegedly defamatory
    statements individually. He submits that the trial judge erred in finding the
    appellants statements about Frederiksen were made maliciously.

[35]

He submits that after judgment was given, but
    before the terms of the injunction were settled, the motion judge received
    unsolicited correspondence from counsel for Frederiksen enclosing a letter the
    appellant had sent to the Canadian Race Relations Foundation, enclosing her
    Notice of Appeal and complaining about the conduct of the motion judge. This,
    he says, could have affected the motion judges decision about the scope of the
    injunction. The appellant is critical of the motion judges liberal importation
    of the respondents factums, cutting and pasting substantial parts of them into
    her reasons. She criticizes the motion judge for casual comments about previous
    law firm relationship with one of the respondents counsel dating back to the
    year 2000 and other casual comments about her own retirement, golf, spouse and
    dinner plans. She alleges that the motion judge was biased, favoured the
    respondents, and pressured her counsel.

[36]

While the appellant did not plead defamation,
    and such a claim would have been barred by the very short limitation period in
    the
Libel and Slander Act
, R.S.O. 1990, c. L.12, the appellant submits
    that her claim was in essence a claim in defamation and that the motion judge
    should have analysed it on that basis.

[37]

The appellant submits that the motion judges
    reasons for dismissing the claim of wrongful appropriation of personality were
    inadequate and wrong.

[38]

The appellant has not particularized her grounds
    of appeal by filing a draft factum on this motion and has not suggested a date
    by which her appeal would be perfected.

Have the respondents been prejudiced by the
    appellants delay?

[39]

The appellant submits that the respondents have
    suffered no prejudice from delay on her part, which should be forgiven because
    she was self represented for the initial period following the judgment, and
    because the matter was complex. Since the injunction would remain in place
    pending the hearing of the appeal, the respondents would be protected from
    further defamatory statements.

[40]

In sum, the appellant submits that the justice
    of this case requires that the Registrars order dismissing the appeal be set
    aside and that she be allowed to perfect her appeal.

Analysis

[41]

The relevant factors on this motion to extend
    the time to perfect an appeal and to set aside a Registrars dismissal are not
    in dispute:
Issasi v. Rosenzweig
, 2011 ONCA 112, 277 O.A.C. 391, at
    para. 4. They are:

1.

whether the appellant formed an intention to
    appeal within the relevant period;

2.

the length of the delay and explanation for the
    delay;

3.

any prejudice to the respondent;

4.

the merits of the appeal; and

5.

whether the justice of the case requires it.

[42]

While the appellant manifested an intention to
    appeal within 30 days of the judgment in issue, I am not persuaded that she has
    pursued the appeal with reasonable diligence. The initial notice from the
    Registrar should have prompted her to act with a sense of urgency, knowing that
    there was a risk her appeal would be dismissed for delay. The summary judgment
    motion was based on a written record. Assembly of an appeal book incorporating
    those documents would have been a mechanical exercise which could have been
    completed without delay but still has not been done. If the appellant proposed
    to place fresh evidence before the panel hearing the appeal about the conduct
    of the hearing, that should have been articulated in an affidavit accompanying
    a motion to admit fresh evidence. The appellant had no apparent difficulty
    articulating her complaints about the trial process in her first Notice of
    Appeal. She has not done so. Cross examination on any such affidavit would
    almost certainly be required and would lead to further delay even if she
    delivered an affidavit promptly.

[43]

The issues on the appeal are largely defined by
    the reasons for judgment, and I am not satisfied that there is a reasonable
    excuse for failure to deliver a factum. No draft factum has been delivered to
    identify the issues that would be argued on appeal.

[44]

We are now 13 months after the judgment and
    these steps have not been taken. Her approach to the appeal has been desultory.
    While the length of the delay is not amongst the worst seen in this court, it
    is important to recall the context of a summary judgment motion, which by its
    nature is intended to avoid a trial when one is not required and promote
    proportionate, economical and speedy access to justice.

The merits of the appeal

[45]

In oral argument, the appellants counsel agreed
    that the linchpin upon which all of the appellants asserted causes of action
    rested was her allegation that the respondents made false statements. When
    asked to point to any evidence of such false statements, counsel was unable to
    do so. This was a sufficient basis to dismiss her claims. The motion judges
    observations that the appellants claims were based on speculation were well
    founded. I agree with her observation that the claim advanced against Farber
    was frivolous and vexatious.

[46]

Here, the motion judge was not weighing the
    credibility of competing versions of events. Even taking the appellants case
    at its highest, there was a critical gap in her evidence. Under these
    circumstances, the motion judge did not err in concluding that this was an
    appropriate case for summary judgment.

[47]

The appellant argues that although not pleaded
    or argued, the motion judge should have treated this as an action for
    defamation. The motion judge would have erred had she done so. It would be even
    more inappropriate to permit these arguments to be advanced for the first time
    on appeal. Such a claim would likely be barred by the three-month limitation
    period under the
Libel and Slander Act
. Farber made his remarks in the
    broadcast on September 19, 2017. The amended statement of claim adding him as a
    defendant was issued on April 15, 2019. Farbers remarks were not on their face
    capable of a defamatory meaning. This is a question of law.:
Lysko v.
    Braley
(2006), 79 O.R. (3d) 721 (CA), at para. 116. Similarly, a claim in
    defamation against Frederiksen could not survive the absence of any evidence of
    defamatory statements.

[48]

The tort of appropriation of personality was
    recently discussed in
Wiseau Studio, LLC et al. v. Harper et al.
,
2020 ONSC 2504, an authority relied
    upon by both the appellant and the respondent Frederiksen. In general, the tort
    is established when a persons personality has been appropriated, amounting to
    an invasion of his right to exploit his personality by the use of his image, voice
    or otherwise with damage to the plaintiff:
Wiseau
, at para. 212. Frederiksens
    truthful statements about her own life experiences and her own choices about
    sexual and religious practices cannot amount to an invasion of the appellants
    right to exploit her own personality. There is no evidence that Frederiksen
    used the appellants name or likeness by way of commercial exploitation.

[49]

The claim for injurious falsehood fails in the
    absence of any evidence of false statements by either respondent and in the absence
    of evidence of malice on their part.

[50]

The claim for civil conspiracy fails in the
    absence of any evidence of an agreement. While the appellant argues on appeal
    that the unlawful means used to advance the conspiracy was defamation, this fails
    in the absence of evidence of defamatory statements.

[51]

The tort of unlawful interference with economic
    relations is established where a plaintiff suffers economic loss resulting from
    a defendants unlawful act against a third party, intended to target the
    plaintiff:
A.I. Enterprises Ltd. v. Bram Enterprises Ltd.
, 2014 SCC 12,
    [2014] 1 S.C.R. 177, at paras. 23, 43, 45. Here, there was no unlawful act nor
    a third party identified.

[52]

There is no basis to posit a novel duty of care
    that would support a claim in negligence. The appellant did not articulate in her
    pleadings or argument any standard of care, any breach of that standard or
    damages due to negligence, all of which are essential elements of a claim in
    negligence.

[53]

Nor do the appellants expressed concerns about
    the conduct of the trial judge rise to the level required to displace the
    presumption of judicial integrity and impartiality:
Cojocaru v. British
    Columbia Womens Hospital and Health Centre
, 2013 SCC 30, [2013] 2 S.C.R.
    357, at paras. 15-20. Frederiksens counsel did not breach Rule 1.09 by sending
    unsolicited communications to the motion judge between the date of the judgment
    and the date when the terms of the injunction were settled. The motion judge
    invited counsel to communicate with her about the terms of the injunction. The
    appellants actions in continuing to communicate with third parties about the
    respondents was relevant to the scope of the injunction.

The counterclaim

[54]

The evidence that the appellant made defamatory
    statements about Frederiksen was overwhelming. The motion judge described the
    breadth of circulation, the degree of repetition and the seriousness of the
    harm inflicted at pp. 131-133 of her reasons for decision:

[131] Ms. Moore submits that the defamatory
    statements meet all three of these elements. First, the defamatory statements
    were published by Ms. Hategan. The majority of the defamatory statements were
    posted online on a variety of social media platforms and websites accessible
    worldwide to thousands of viewers. In certain instances, the defamatory
    statements were emailed directly to third parties and, with respect to the
    case summary, was emailed to over 500 people. Secondly, Ms. Moore is the
    clear target of the defamatory statements. The Court of Appeal for Ontario has
    confirmed that defamation can be made out through statements that do not refer
    specifically to the plaintiff, in this case Ms. Moore, but follow previous
    statements in which Ms. Moore is specifically identified. In most cases
    the defamatory statements expressly identify Ms. Moore by name or photograph.
    In certain defamatory statements, she is not specifically named, but these
    statements follow previous statements in which she is specifically identified. A
    reasonable reader would understand that the publication is about
    Ms. Moore.

[
132
] Finally, Ms. Moore
    claims that there is no question that the defamatory statements would tend to
    lower Ms. Moores reputation in the eyes of a reasonable person. She submits
    that the defamatory statements are of the most serious nature, containing
    accusations of manifestly improper and immoral conduct, and contain all the
    essential hallmarks of expression that is not worthy of protection. In their
    plain and ordinary meaning, the defamatory statements would be understood to
    mean that Ms. Moore is a stalker; is a liar; is dangerous; is not to be
    trusted; has engaged in unethical and illegal behaviour; is homophobic; is
    lying about being bisexual; is a bigot; is delusional; suffers from mental
    illness; has engaged in fraud; has capitalized on white supremacy for personal
    gain; has colluded with individuals and organizations to attain financial
    gains; has appropriated Ms. Hategans experiences for her own personal and
    financial gain; trades sexual favours for success; and has committed perjury by
    lying in an affidavit filed with the court.

[
133
]
    I agree that the tort of defamation has been made out. The words complained of
    were published to at least one other person; the words complained of referred
    to Ms. Moore either directly or indirectly and the impugned words are
    defamatory, in the sense that they tend to lower Ms. [Moore]s reputation in
    the eyes of a reasonable person. [Footnotes omitted.]

[55]

I do not accept the argument that in this
    context, the motion judge was obliged to examine each statement made by the
    appellant in isolation.

[56]

The onus was on the appellant to establish any
    defence to the defamation. Given the gaps in the appellants evidence, I am not
    persuaded that the motion judge erred in rejecting the defences of justification
    and fair comment. The thrust of the appellants campaign was that Frederiksen
    was dishonestly stealing her identity. That was not established. Here, the mode,
    style, tenor, tone, language, broad dissemination over multiple platforms as
    well as the content of the communications scream of malice. The evidence
    proffered by the appellant did nothing to dispel that impression: see
Zhong
    v. Wu
, 2019 ONSC 7088, at para. 24.

[57]

The appellant also submits that the motion judge
    erred in granting an injunction restricting her ability to speak about
    Frederiksen. The terms of the injunction are as follows:

4. THIS COURT ORDERS that a permanent
    injunction be granted as against Hategan restraining Hategan from making,
    distributing, disseminating or in any way publishing any statement orally or in
    writing (including electronic) on any online platform or through any medium or
    to any third party whatsoever that: (a) refers to Frederiksen by name; or (b)
    refers to Frederiksen with sufficient detail or information to make it possible
    to reasonably identify Frederiksen even without referring to Frederiksens
    name;

5. THIS COURT ORDERS that Hategan remove from
    any online platform any statement that she has distributed, disseminated or in
    any way published about Frederiksen, including but not limited to all
    statements listed in the Amended Claim, and that all such statements be removed
    within seven days of this Order;

6. THIS COURT ORDERS that within seven days of
    this Order, Hategan contact all relevant entities and take all necessary steps
    to release and never again use all domain names listed at paragraph 44 of the
    Amended Claim and any other domain names which Hategan may have created that
    refer to Frederiksen or use Frederiksens name;

7. THIS COURT
    ORDERS that Hategan will refrain from ever purchasing, holding, using or
    controlling any internet domains, tags, handles, websites, profiles or other
    online identifiers containing Frederiksens name;

[58]

Given the appellants history of disregarding
    the interim order and the intentions she expressed, there was good reason to
    believe that absent an injunction she would continue her abusive campaign. Further,
    there was good reason to believe that any judgment for damages was unlikely to
    be recoverable. Given the breadth and persistence of the defamatory conduct, I
    am not persuaded that the injunction was overly broad: see
Rainy River
    (Town) v. Olsen
, 2017 ONCA 605, 6 C.P.C. (8th) 1, at para. 5. The appellant
    is not restrained from speaking about the many matters that are important to
    her, provided she does not refer to Frederiksen. This is a modest limitation on
    her freedom of speech, in the circumstances.

[59]

In her factum filed on this motion, the appellant
    does not challenge the motion judges conclusions that the appellant had
    appropriated Frederiksens identity by securing domain and web site names
    incorporating the latters name, nor that the appellant had publicized a
    confidential communication made to her by Frederiksen, except to say that the
    motion judge should not have made a global award of damages for all of the
    wrongs committed by the appellant. The overall award was reasonable. There is
    little likelihood it would be altered on appeal.

[60]

Overall, I conclude that there is little or no
    merit to the appeal.

Prejudice

[61]

It would be prejudicial to the respondents to
    incur further costs to resist an appeal with so little merit, particularly
    given the appellants assertions that she is immune from any judgment awarded
    against her: see
Bobel v. Humecka
,
2021 ONCA 757.

The overall justice of the case

[62]

I recognize the importance of the right of
    appeal. However, stepping back and looking at this matter as a whole, I am not
    persuaded that the Registrars order dismissing the action should be set aside
    nor that further time should be allowed to perfect the appeal. Considering the
    appellants failure to pursue the appeal with reasonable timeliness, the little
    merit to the appeal, the prejudice to the respondents, coupled with the evident
    malice with which the appellant has acted, to the detriment of the respondents,
    the motion is dismissed.

[63]

The respondent Frederiksen does not seek costs
    of this motion if it is dismissed. The respondent Farber sought costs fixed at
    $5,000.00. There is no reasons why costs should not follow the result of this
    motion, if demanded, and costs of the motion are awarded to Farber fixed at $5,000.00
    inclusive of taxes and disbursements.

G.
    Pardu J.A.





[1]

Elizabeth Moore Frederiksens legal name is Elizabeth
    Frederiksen, but she continues to use her original name, Elizabeth Moore, for
    her work.


