Don’t @ Me — Twitter Callout Causes Contempt

November 09, 2022

By Annie Levanaj

The Post v. Hillier trilogy of cases is important in demonstrating the serious consequences individuals can face for failure to comply with court orders in civil actions.

Part 1: Post v. Hillier, 2022 ONSC 3793

The initial decision dealt with a defamation action. The plaintiff, Ms. Post, sought damages, an injunction and costs for false and defamatory tweets posted about her by the defendant Ms. Hillier, in November 2021. The plaintiff moved for default judgement as the defendant had not defended the lawsuit and as such, the defendant was noted in default. Justice Gomery highlighted that this meant that the defendant was deemed to admit the truth of all allegations of fact made in the Statement of Claim. 

Background Facts

The plaintiff had a PhD in Literature and Cultural Studies and taught English courses at Carleton University for over 18 years. The defendant was the plaintiff’s former student at Carleton, had run for public office twice and her father was a politician. The parties met in 2008 when the defendant took two undergraduate English classes, taught by the plaintiff. The two became friends and the defendant was even in the plaintiff’s wedding party. However, the friendship deteriorated in 2020 over political differences, with both parties active on Twitter.

The Twitter Posts

The conflict began when Ms. Post retweeted a thread that criticized anti-vaccine protests at hospitals and other tactics endorsed by the defendant and her father. The defendant responded by tweeting comments insinuating that Ms. Post had engaged in a romantic relationship with a student and referred to the plaintiff as a “violent white nationalist”. The defendant’s tweets were broadcast to approximately 9,300 followers.

The plaintiff reported the tweets, and the defendant’s account was suspended for violating Twitter’s rules. A week later, the defendant made a new account and continued posting. From November 18 – 21, 2021 the defendant posted numerous tweets including ones describing the plaintiff as a sexual predator who drugged her students, a gas-lighter, and an abuser. The defendant’s account had grown to 50,000 followers. The defendant even tweeted threatening to contact Carleton University with these allegations and tagged Carleton’s account on at least one occasion.

Litigation

The plaintiff sent the defendant notice of libel on December 7, 2021. The defendant received the notice by email, but announced on Twitter that she had no intention of removing her tweets. Thus, Ms. Post served the defendant personally with her Statement of Claim on January 9, 2022. The defendant never responded with a statement of defence, but posted about the lawsuit on Twitter and continued mocking the plaintiff.

The Court’s Defamation Analysis

The tort of defamation is one of strict liability and requires that:

  1. The words were defamatory in that they would tend to lower the reputation of the plaintiff in the eyes of a reasonable person;
  2. The words in fact referred to the plaintiff; and
  3. The words were published, meaning communicated to at least one person other than the plaintiff. [1]

In this case, Justice Gomery found that all elements of the test were satisfied. The defendant’s words were defamatory as the accusation that the plaintiff was a sexual predator who drugged her students was damaging for a teacher and if believed would seriously damage her reputation in the eyes of the students, employers and the world. The words used in the tweets clearly referred to the plaintiff as they used her name, disclosed her profession, tagged or mentioned her employer, attached photos of her and tagged her Twitter handle. The transmission of the statements through tweets satisfied publication. They were seen by all of Ms. Hillier’s followers.

After a plaintiff proves the elements of defamation, the onus then shifts to the defendant to raise a defence. However, here the court did not consider defences given that the defendant was in default.

Damages

For defamation cases, the court noted that a plaintiff does not need to prove they suffered a financial loss to be awarded damages. Justice Gomery noted that damages for defamation vary significantly. For the situation at hand, the plaintiff’s profession was a key consideration. The defamatory statements were likely to harm her reputation and professional standing.

A court can award aggravated damages where a defendant makes defamatory statements out of malice. The court highlighted that the defendant failed to apologize or retract any comments, doubled down on her defamatory statements since receiving the notice of libel, and acted out of malice.  Justice Gomery found that the substance of the tweets indicated that the defendant was aware of the impact of her actions and as former friends, the defendant knew the plaintiff suffered from panic disorder and PTSD. Thus, the court awarded $75,000 in total for aggravated and general damages.

Punitive damages are awarded in defamation cases where the defendant’s misconduct is so malicious, oppressive, and high-handed that it offends the norms of decent behaviour. The plaintiff was awarded $10,000 in punitive damages because it was evident that the defendant was happy that she was causing harm to her former friend. Justice Gomery found the tweets vengeful and vindictive.

Injunctive Relief

The plaintiff also asked for certain injunctive orders. Justice Gomery found an order requiring the defendant to remove the defamatory content and to not communicate about the plaintiff any further was justified. Justice Gomery opined that without such an order, there was a very real possibility that the plaintiff would continue to post such statements.

The judge also noted that there is a possibility that the plaintiff would not be able to recover the damages awarded, as the defendant had also previously posted that she has no funds. Therefore, the court granted a permanent injunction requiring that the defendant take down all social media posts regarding the plaintiff within 10 days of the decision.  It also found it appropriate and necessary for the defendant to post a retraction on her Twitter account for 60 days, acknowledging that her statements about Ms. Post were false and defamatory, and providing a link to this decision on CanLII.

Justice Gomery ordered the defendant to pay the plaintiff $85,000 in damages, to post a retraction on her Twitter account for 60 days, to remove any and all tweets in relation to the plaintiff and to refrain from ever communicating or causing to be communicated on any social media platform or by any other means, any false, defamatory, or otherwise disparaging information in regard to the plaintiff.

Part 2: Post v. Hillier, 2022 ONSC 5253

A second decision was released in regards to this matter. On June 24, 2022, the day the first decision became available, the defendant posted 10 additional defamatory tweets about the plaintiff. The plaintiff brought a motion for civil contempt against the defendant for failure to comply with Justice Gomery’s decision and Order.

Court’s Analysis

The analysis began by outlining that Rule 60.11 governs civil contempt. The court then cited Carey v Laiken[2], a Supreme Court decision that established that a finding of contempt requires the court to be satisfied beyond a reasonable doubt that: 

  1. the order alleged to have been breached states clearly and unequivocally what should and should not have been done;
  2. the party alleged to have breached the order had actual knowledge of it [the Order]; and
  3. the party allegedly in breach intentionally did the act that the order prohibits or intentionally failed to do the act that the order compels.

Court proceedings dealing with contempt require the moving party to make a case for a contempt finding followed by the responding party presenting its defence.

Justice Somji found the first criterion was met and that the terms of Justice Gomery’s Order were clear and unequivocal. Justice Somji stated that “the Order could not be clearer”.

The second part of the test was also met, as the defendant was sent a copy of the decision by email by Justice Gomery’s judicial assistant, and the same day of the decision, the defendant posted on Twitter that a default judgement was made against her. The defendant never denied receiving the Order but argued that she was unaware of Justice Gomery’s specific directions to remove the posts, publish a retraction and stop further tweets about the plaintiff.

The court did not accept the defendant’s explanation that she did not have knowledge of the contents of the Order, given her tweets. Justice Somji found beyond a reasonable doubt that the defendant had knowledge of the Order on June 24, 2022, before she tweeted later that evening.  

On the question of whether the defendant intentionally breached the Order, the court began by outlining that civil contempt involves the intentional doing of an act which is in fact prohibited by the order. Citing Carey v. Laiken, Justice Somji indicated that “the intentional doing of an act or omitting to do act that is contrary to the Order is sufficient to establish contempt. The court found that the defendant intentionally tweeted about the plaintiff contrary to the directions of the Order, did not issue the retraction required of her in a requisite time, and intentionally failed to remove the tweets within the 10 day time period required by Justice Gomery.

Justice Somji ultimately found beyond a reasonable doubt that the defendant breached the directive in the Order requiring her to remove all defamatory posts within 10 days. The court noted that the conduct that was the subject of the contempt had already occurred. However, the court’s decision concluded by stating that the defendant was being given the opportunity to purge the contempt and remove the remaining tweets before her sentencing hearing.  The court would consider the defendant’s conduct during this time in the hearing.

Part 3: Post v. Hillier, 2022 ONSC 6005

This decision focused on the appropriate sentence for the defendant for her civil contempt.

Court’s Analysis

Justice Somji’s analysis began by highlighting that the effectiveness of the judicial system requires respect for court orders. Justice Somji outlined that the Superior Court of Justice is a court of inherent jurisdiction, meaning it has broad common law powers to enforce and punish violations of court orders. Citing rule 60.11 (6) of the Rules of Civil Procedure, Justice Somji outlines that the court has powers to sanction civil contempt, including requiring the offender to:

  1. be imprisoned for such period and on such terms as are just;
  2. be imprisoned if the person fails to comply with a term of the order;
  3. pay a fine;
  4. do or refrain from doing an act;
  5. pay such costs as are just; and
  6. comply with any other order that the judge considers necessary, and may grant leave to issue a writ of sequestration under rule 60.09 against the person’s property.

In determining the sentence to be imposed, the court has to consider the guiding principles for sentencing used in criminal law, laid out in ss. 718, 718.1, and 718.2 of the Criminal Code. These principles include considering the proportionality between the gravity of the offence and degree of responsibility of the offender, aggravating and mitigating factors surrounding the contempt, denouncing unlawful conduct, rehabilitation of the contemnor, reparation for harm to the victims of the community, etc.

The court distinguished between the principles used for sentencing in civil contempt cases versus criminal contempt, noting that:

For criminal contempt, the sentence is designed to punish the offender whereas with civil contempt, the court’s focus is on obtaining compliance so as to enforce the rights of a private party.

The court highlighted the aggravating factors in the given situation, including the defendant’s post of ten additional defamatory tweets within eight hours of receiving Justice Gomery’s decision, and the defendant’s refusal to post a one-sentence retraction stating that her online statements about the plaintiff were false until after the finding of contempt.

The court considered the impact of the defendant’s contemptuous conduct on the plaintiff. Justice Somji noted that the defendant’s contempt in breaching the Order impacted the plaintiff financially, mentally and physically in addition to the legal expenses incurred by the plaintiff for the defamation lawsuit.

Justice Somji also highlighted that the defendant’s friend had organized a GoFundMe for her, adding more fuel to the fire. Additionally, after the contempt decision, a GiveSendGo campaign was out through a twitter link and the campaign’s description perpetuated the defamation and suggested the online comments about the plaintiff were true.

The defendant claimed she had not read the description of the campaign because she does not like to read things about herself, and ensured it was deleted after being notified about the page by her lawyer. The court did not accept the defendant’s evidence regarding the fundraising campaigns and opined that this was not the first time the defendant tried to explain away her conduct by suggesting she did not read information.

Justice Somji also considered mitigating factors, noting that the defendant was facing mental health concerns for the last ten months and had lost her late husband in May 2022. The court recognized that the defendant ultimately did purge the contempt which constituted a mitigating factor in civil contempt given the objective is compliance with court orders. The judge also accepted that the defendant apologized and was sincere in her apology.

Decision

The judge ultimately sentenced the defendant to a 75-day Order akin to a conditional sentence, requiring her to be on house arrest for the duration of that time, followed by nine months of probation. The sentence also required the defendant to complete 120 hours of community sentence, to comply with Justice Gomery’s Order, and required that the defendant not make any additional online statements about the plaintiff and the legal proceeding and to not make any defamatory posts about the plaintiff.

Takeaway

Failure to comply with a Judge’s order in civil court can result in more than just monetary sanctions. The Post v. Hillier trilogy demonstrates that egregious conduct and noncompliance with court orders may result in incarceration or other sentences. Individuals should respect the civil justice system and ensure they comply with court orders to avoid serious consequences.

[1] per Grant v. Torstar, 2009 SCC 61

[2] Carey v. Laiken, 2015 SCC 17 (CanLII), [2015] 2 SCR 79