



COURT OF APPEAL FOR ONTARIO

CITATION: Lavallee v. Isak, 2022 ONCA 290

DATE: 20220407

DOCKET: M53215 (C69999)

Roberts J.A. (Motion Judge)

BETWEEN

Shania Lavallee and Justine Lavallee

Plaintiffs
(Respondents/Moving Parties)

and

Solit Isak

Defendant
(Appellant/Responding Party)

Charles R. Daoust, for the moving parties

Cedric Nahum, for the responding party

Heard: March 10, 2022 by video conference

REASONS FOR DECISION

Overview

[1]

The moving parties, Shania and Justine
    Lavallee (the Lavallees) seek an order that the responding party, Solit Isak,
    post security for their costs: $30,000 as security for the $20,000 cost award granted
    to them in their successful defamation action; and $10,000 for their estimated appeal
    costs. The Lavallees argument, in a nutshell, is that they should not be
    subjected to the costs of an unmeritorious appeal that they will not be able to
    compel Ms. Isak to pay.

[2]

Ms. Isak has filed no evidence in response to
    this motion. Her counsel submits that she is impecunious and does not dispute
    that she has insufficient assets to pay the Lavallees costs. There is no
    objection to the amount requested as security for costs or that it covers both
    the trial and estimated appeal costs. However, she submits her appeal is
    meritorious and brought in good faith, and no security of costs should
    therefore be ordered.

[3]

In the alternative, if security for costs is
    not granted, the parties agree that the Lavallees may have an extension of time
    to file a cross-appeal and to file their factum.

[4]

The following reasons explain why I conclude
    that it is fair and just in all the circumstances that Ms. Isak post security
    for the Lavallees costs of the trial and the appeal.

Background

[5]

The Lavallees action arises out of Ms. Isaks
    online comments and actions in response to a screenshot from a video created by
    the Lavallees, who are sisters. Shania Lavallee posted a video of her sister
    and Shanias partner playfighting for a group of her followers on the media
    platform, Snapchat. An isolated screenshot of one scene from the video was
    surreptitiously taken by one of Shanias followers and then circulated. The
    screenshot ultimately reached Ms. Isak.

[6]

The screenshot shows Justine Lavallee lying
    facedown on the ground. Shanias partner has Justines arms pinned behind her
    back and his knee placed on the middle of Justines back. According to the
    unchallenged evidence filed by the Lavallees and other witnesses who had seen
    the video on Snapchat while it was still available online, the posted video was
    typical of those that Shania regularly took and posted of her sister and Shanias
    partner playfighting. They stated that the screenshot was only a small part of
    the entire video that showed Justine and Shanias partner playfighting. No
    comments or remarks related to George Floyd, police brutality, and/or racism
    were spoken in the video.

[7]

Ms. Isaks reaction was immediate. She testified
    that she unsuccessfully tried to obtain a copy of the video and spoke to a few
    people who had viewed it; one of them erroneously reported that the words
    police brutality were said in the video. Although Ms. Isak did not see (and
    has never seen) the entire video, she denounced the video, the screenshot and
    the Lavallees as racist in over 100 social media posts. She stated that they
    were mocking the tragic death of George Floyd that had occurred only days
    before the video was posted. She also called them disgusting, said they
    deserve to rot in hell, and labelled them K K & K. She did not know and
    had never met the Lavallees before receiving the screenshot, but managed to
    discover their addresses, phone numbers, and employers. She launched an online
    campaign encouraging others to denounce the Lavallees and have them dismissed
    from their employment.

[8]

As the motion judge found at para. 6 of his
    reasons, Ms. Isaks online campaign was successful: the Lavallees lost their
    employment; Shania was investigated by the Ontario College of Teachers and the
    Ottawa Catholic School Board rescinded their offer of employment; their home
    was vandalized; their neighbours car was seriously damaged; and their friends
    and family, who had nothing to do with Shanias posting, were subjected to death
    threats and harassing phone calls and social media messages.

[9]

In response to the unexpected viral and
    intense backlash that the screenshot had caused, Shania posted an apology
    including that she did not mean any disrespect, but she could see how the video
    could be taken out of context.

[10]

The Lavallees through their counsel attempted
    to resolve matters with Ms. Isak. In response, Ms. Isak intensified her
    campaign against them. The Lavallees commenced an action against Ms. Isak,
    seeking damages and a permanent injunction with respect to her postings. Ms.
    Isak defended the action, initially including and then abandoning a
    counterclaim. The Lavallees brought a motion for summary judgment and filed
    affidavits. Ms. Isak was examined for discovery but did not examine the
    Lavallees. Subsequently, Ms. Isak filed a very short affidavit in response to
    the motion for summary judgment that essentially adopted the contents of her
    statement of defence and examination for discovery.

[11]

The motion judge concluded that this was an
    appropriate case for summary judgment because there were no material facts in
    dispute and noted Ms. Isak did not challenge the appropriateness of summary judgment.
    He accepted the Lavallees unchallenged evidence concerning the nature and
    contents of the video. It was not contested that Ms. Isak was the author of her
    impugned statements, the statements were about the Lavallees, and her
    statements were published to third parties on social media accounts. He further
    found that Ms. Isaks statements denouncing the Lavallees as racist tended to lower
    the Lavallees reputations in the eyes of a reasonable person. Following
Grant
    v. Torstar
, 2009 SCC 61, [2009] 3 S.C.R. 640, at paras. 28-29, he
    determined that the three elements of defamation were established. He therefore
    concluded that Ms. Isaks postings were defamatory of the Lavallees.

[12]

The motion judge then turned to Ms. Isaks
    defences. He rejected Ms. Isaks defences of justification and fair comment. He
    noted that Ms. Isak had never seen the video and had only seen the screenshot
    before sharing it on social media and denouncing the screenshot, video, and the
    Lavallees as racist. He concluded that the defences were unavailable primarily
    because Ms. Isak did not establish an adequate factual foundation for her
    comments that the Lavallees actions and their video were racist, noting that
    she did not see the video. He rejected that Shanias posted apology represented
    an admission of guilt.

[13]

The motion judge allowed the motion for
    summary judgment and granted judgment to the Lavallees in the amount of $50,000
    to each party, plus costs. He noted that there was a real possibility that the
    Lavallees would not receive any compensation given that Ms. Isak was unemployed
    as of her examination for discovery in December 2020 and likely did not have
    significant financial resources to pay the judgment and costs awarded.

[14]

Ms. Isak appealed. The main thrust of her
    appeal is that the motion judge erred in finding that there was no provable,
    factual basis supporting her opinion that the Lavallees were racist because, in
    her view, the screenshot and their video mocked the tragic death of George
    Floyd.

Analysis

Security for costs

[15]

This motion is brought pursuant to rule 61.06(1)(a)
    and (c) of the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194, which
    provide as follows:

In an appeal where it appears that,

(a) there is good reason to believe that the appeal is
    frivolous and vexatious and that the appellant has insufficient assets in
    Ontario to pay the costs of the appeal;

or

(c) for other good reason, security for costs should be ordered,

a judge of the appellate court, on motion by the respondent,
    may make such order for security for costs of the proceeding and of the appeal
    as is just.

[16]

The ordering of security for costs is
    discretionary and not routine. It involves the consideration of the criteria
    under rule 61.06(1) and requires the overarching assessment of whether it would
    be just to order security, having regard to the particular circumstances of the
    case and the interests of justice:
Yaiguaje v. Chevron Corporation
,
    2017 ONCA 827, 418 D.L.R. (4th) 679, at paras. 18-19, 22. As court further
    noted in
Yaiguaje
, at para. 25, as each case must be considered on its
    own facts, [i]t is neither helpful nor just to compose a static list of
    factors to be used in all cases in determining the justness for a security for
    costs order.

(i)

Rule 61.06(1)(a)

[17]

I agree that the provisions of rule 61.06(1)(a)
    are met. As earlier noted, it is conceded that Ms. Isak has insufficient assets
    to pay the Lavallees costs. Moreover, there is good reason to believe that Ms.
    Isaks appeal is frivolous and vexatious.

[18]

I am not required to determine that Ms. Isaks
    appeal
is
frivolous and vexatious; I must only be satisfied that there
    is good reason to believe that it is:
Schmidt v. Toronto Dominion Bank
(1995), 24 O.R. (3d) 1 (C.A.), at para. 16. Relevant factors to be considered
    in my analysis include those set out in the following oft-cited passage from
Schmidt
,
    at para. 18:

The apparent merits of the appeal, the presence or absence of
    an oblique motive for the launching of the appeal, and the appellants conduct
    in the prosecution of the appeal will be relevant to a determination of whether
    there appears to be good reason to believe that the appeal is frivolous and
    vexatious. No doubt, in specific cases, other factors will also be relevant.

[19]

The interpretation of frivolous and
    vexatious is not defined under the
Rules of Civil Procedure or the Courts
    of Justice Act
, RSO 1990, c C.43 nor has any rigid categorization arisen
    in the case law. Judicial treatment of these terms is however consistent. A frivolous
    appeal has been interpreted as meaning one readily recognizable as devoid of
    merit, as one having little prospect of success:
Pickard v. London Police
    Services Board
, 2010 ONCA 643, 268 O.A.C. 153, at para. 19. A vexatious
    appeal includes one taken to annoy or embarrass the opposite party or
    conducted in a less than diligent or vexatious manner:
York University
    v. Markicevic
, 2017 ONCA 651, at para. 33;
Henderson v. Wright
,
    2016 ONCA 89, 345 O.A.C. 231, at para. 20;
Pickard
, at para. 19;
Schmidt
,
    at para. 20. This may include an oblique motive for launching the appeal,
    such as to harm a party or delay the proceedings or a given result:
Heidari
    v. Naghshbandi
, 2020 ONCA 757, 153 O.R. (3d) 756, at para. 10;
Schmidt
,
    at para. 20;
York University
, at paras. 33-34. It also may include a
    failure to comply with the rules, court orders and costs orders, including
    filing out of time and only when forced to:
Pickard
, at para. 25;
Schmidt
,
    at para. 20;
York University
, at para. 36;
Henderson
, at
    para. 20.

[20]

Ms. Isak says that her appeal is meritorious.
    She accepts that the motion judge applied the correct tests for the defences of
    justification and fair comment and acknowledges that those tests required her
    to demonstrate a factual foundation for her impugned statements. However, she maintains
    that the motion judge erred by conflating opinion with fact, and that the
    screenshot provided the factual basis for her opinion that the Lavallees were
    racist because it was open to her to describe the screenshot in the way that she
    did. Ms. Isak contends that the screenshot speaks for itself.

[21]

The difficulty with Ms. Isaks position is
    that her appeal essentially amounts to a challenge of the motion judges
    factual findings that were open to him to make on the record before him, contain
    no apparent error, and would therefore be owed deference on appellate review. Apposite
    are this courts comments in
Henderson
, at para. 16: This appeal does
    not raise any arguable error in law, and challenges findings of fact and credibility
    for which the trial judge set out detailed, facially sound reasons. This court
    has held that such appeals appear to have no merit (citations omitted).

[22]

In my view, Ms. Isak has not put forward an
    arguable basis to interfere with the trial judges findings. As the motion
    judge found, Ms. Isak based her views of the entire video and the Lavallees
    actions on an out of context screenshot and on others erroneous hearsay
    observations. Moreover, her impugned statements were not restricted to the screenshot:
    they included the video that she had never viewed. She anchored her statements that
    the Lavallees were racists on a misapprehension of what the video contained,
    including the erroneous allegation that it contained the words police
    brutality. The motion judge found that Ms. Isak did not and could not provide
    a factual foundation for her opinion that the Lavallees and their video were
    racist, because she had not seen the video, could not say what it contained,
    and the screenshot was taken out of context.

[23]

Importantly, as the motion judge found, Ms.
    Isak did not provide evidence of what the video contained to counter the
    Lavallees and their affiants evidence that the motion judge accepted. Her speculative
    assumption of what the video depicted, based on erroneous hearsay information and
    an isolated screenshot, was at odds with the evidence that the motion judge
    accepted to be the correct, factual description of what the video showed,
    including the screenshot. This was not a difference of opinions, as Ms. Isak
    argues, but evidence of the factual content of the video from witnesses who saw
    the video that the motion judge was entitled to accept. In my view, there is no
    apparent basis to interfere with the motion judges factual findings.

[24]

Ms. Isak contends that her appeal is not
    vexatious because she has brought and pursued her appeal in good faith, and not
    for any oblique purpose or to annoy or harass the Lavallees.

[25]

In considering this point, it is important not
    to conflate an appellants subjectively and firmly held belief in the rightness
    of an appeal with good faith. To be sure, deliberately pursuing an appeal in
    bad faith, for an oblique purpose, or to annoy, harass or harm are all indicia
    of a vexatious proceeding. However, so, too, is the failure to follow rules of
    procedure and court orders and the failure to pursue an appeal responsibly and with
    diligence:
Henderson
, at para. 20;
York
, at para. 36;
Schmidt
,
    at para. 20. In those circumstances, it can hardly be said that an appeal is
    being pursued in good faith. Rather, there is good reason to believe it is
    vexatious.

[26]

In the present case, there is good reason to
    believe that the appeal is vexatious. Ms. Isak did not pursue her appeal or
    follow the rules with diligence which resulted in unexplained and unnecessary delay
    and costs.

[27]

The motion judges reasons for decision were released
    on October 7, 2021. Ms. Isak did not serve her notice of appeal until November
    10, 2021 and then required the consent of the Lavallees counsel to the late
    filing of the notice on November 15, 2021. She failed to perfect her appeal by
    the deadline under the Rules. As a result, the Registrar issued a Notice of
    Intention to dismiss the appeal for delay dated December 20, 2021, which
    required perfection of the appeal on or before January 11, 2022. Ms. Isak again
    required the consent of the Lavallees counsel to the late filing of her appeal
    book, compendium, and factum on January 14, 2022.

[28]

With respect to the Lavallees motion for
    security for costs, the notice was served on November 24, 2021. However, the
    motion was not brought because of Ms. Isaks delay in perfecting her appeal.
    The original return date for the motion on March 2, 2022 was further adjourned
    by this court at Ms. Isaks last minute request because she did not realize
    the motion was set for that day although motion materials had been served on
    February 16, 2022. The court ordered Ms. Isak to pay costs of $500.

[29]

The appeals lack of merit combined with Ms.
    Isaks less than diligent pursuit of this appeal that resulted in unnecessary
    delay and costs provide good reason to believe the appeal is frivolous and
    vexatious:
Henderson
, at para. 20.

(ii)

Rule 61.06(1)(c)

[30]

If I am wrong in my analysis and conclusion with
    respect to rule 61.06(1)(a), I am of the view that the Lavallees are entitled
    to security for costs under rule 61.06(1)(c) which, as noted above, provides
    that security may be ordered for other good reason.

[31]

Jamal J.A. (as he then was), sitting as a
    motion judge, explored what other good reason means in
Heidari
,
at para. 23:

Although the list of reasons justifying security under this
    residual category is not closed, the other good reason must be: (1)
    consistent with the purpose for ordering security  namely, that the respondent
    is entitled to a measure of protection for costs; and (2) fairly compelling,
    because the residual category is only engaged where the respondent cannot meet
    the requirements of rules 61.06(1)(a) or (b). [Citations omitted.]

[32]

As this court observed in
Henderson
,
    at para. 28, the other good reason criterion balances the need to ensure an
    appellant is not denied access to the courts, with the respondents right to be
    protected from the risk the appellant will not satisfy the costs of the
    appeal.

[33]

In my view, there are compelling reasons here to
    order security for costs.

[34]

For the reasons earlier noted, I am of the
    view that the appeal is without merit. As Ms. Isak concedes that she does not
    have sufficient assets to satisfy the Lavallees costs, it will prove
    practically impossible for them to compel payment of their costs. There is no
    evidence, however, that Ms. Isak does not have any means to pay costs.

[35]

In balancing the equities here, I am mindful of
    this courts caution in
Yaiguaje
, at para. 23, that [c]ourts must be
    vigilant to ensure an order that is designed to be protective in nature is not
    used as a litigation tactic to prevent a case from being heard on its merits.
    That is not the case here.

[36]

There is no indication that an order for
    security for costs will effectively bring this appeal to an end. While I
    appreciate that it may prove difficult for Ms. Isak to post the security for
    costs requested by the Lavallees, she has not filed any evidence that she will
    be unable to do so. While it is conceded that she has insufficient assets to
    pay costs, Ms. Isak filed no evidence concerning her present employment or
    financial status or ability to raise or borrow funds. I also note the evidence
    from Shania Lavallees affidavit on the motion for summary judgment and Ms.
    Isaks examination for discovery that Ms. Isak previously had recourse to the
    GoFundMe website to raise donations for her legal costs at trial. Moreover, her
    counsel did not argue that she would be unable to post security; rather, she
    would need some time to do so.

[37]

The Lavallees motion for security for their
    costs is not a litigation tactic. They have incurred considerable expense
    to-date. As Shania Lavallee indicated in her uncontroverted affidavit filed on
    this motion, the Lavallees actual trial costs were more than double the costs
    awarded. Like Ms. Isak, the Lavallees are of modest means and their employment
    prospects were undone by Ms. Isaks actions that the motion judge characterized
    as inexcusable. As the motion judge found: [Ms. Isak] demonstrated
    complete disregard for the well-being of another human being and blindly
    embarked on a brutal and unempathetic campaign to destroy the lives of two
    young women.

[38]

Considering the lack of the appeals merit and
    Ms. Isaks delay in pursuing it, it would be unfair to expect the Lavallees to
    shoulder the burden of the costs of an unmeritorious appeal.

[39]

Even if I were to accept that Ms. Isak is
    impecunious, given my serious reservations about the merits of her appeal, it would
    be unfair to allow Ms. Isak to proceed in such circumstances with impunity.
    Doing so would cause the Lavallees to incur significant further costs
    themselves, without Ms. Isak having to face the normal consequences of costs if
    she is unsuccessful:
Schmidt
, at para. 17.

Conclusion

[40]

Stepping back and looking at all of the
    circumstances, I am persuaded that the justice of the case requires that
    security for the Lavallees estimated costs of the appeal in the amount of $15,000
    should be ordered to be paid into court by Ms. Isak. The circumstances of
    this case warrant security for both the trial and the appeal costs; however,
    the reduced amount recognizes Ms. Isaks limited financial circumstances.

[41]

In this event, the parties agree that the
    appeal shall be stayed until the security is paid, and that if the security is
    not paid by June 8, 2022, the appeal date shall be vacated, and the moving
    parties may move to dismiss the appeal under rule 61.06(2).

Disposition

[42]

For these reasons, order to go as follows:

1.

The appeal is stayed until security for costs is posted by Ms. Isak;

2.

Ms. Isak shall post security for costs in the amount of $15,000 by June
    8, 2022;

3.

If Ms. Isak fails to post the ordered security by June 8, 2022, the
    appeal date of June 27, 2022, shall be vacated and the Lavallees may move to
    dismiss the appeal under rule 61.06(2).

[43]

The Lavallees are entitled to their costs of
    this motion from Ms. Isak in the amount of $4,400, inclusive of disbursements
    and applicable taxes, payable forthwith.

L.B. Roberts J.A


