Summary judgment awarded to plaintiffs defamed by de-contextualized screenshot from personal video

In Lavallee et al. v. Isak, Justice M. Smith of the Ontario Superior Court of Justice presided over a summary judgment motion in a defamation case brought by the three plaintiffs against the defendant. The two adult plaintiffs were “play-fighting” with a third person and one of them took a short video of the other two, posting it to her Instagram account. One of her Instagram followers took a screenshot of a moment when the other plaintiff was facedown on the ground, her arms held behind her back by the third person who also had his knee pressed into her back. The Instagram follower circulated this screenshot, which came to the attention of the defendant. The defendant (who did not know the plaintiffs and never did see the entire video) circulated the screenshot on Twitter and Instagram, making numerous posts and re-posts denouncing the plaintiffs as racist because, in her view, they were mocking the death of George Floyd.

The posts attracted attention. Numerous people re-posted and commented on the plaintiffs’ character, racism and ability to perform their jobs. One plaintiff was fired from her job at the Canada Border Services Agency and could not obtain work with the RCMP or any other branch of the federal government. Another plaintiff, a teacher, was investigated by the Ontario College of Teachers, had a job offer rescinded from the Ottawa Catholic School Board, and lost her job at a restaurant. “The Plaintiffs’ home was vandalized, their neighbour’s car seriously damaged, and their friends and family were subjected to death threats and harassing phone calls and social media messages.” The plaintiffs brought an action in defamation against the defendant, and moved for summary judgment.

Justice Smith first examined whether the case was appropriate for summary judgment, which the defendant did not dispute. There was no issue that the defendant was the author of the social media posts and that they were about the plaintiffs, nor that the defendant had published the posts by sharing them on Instagram and Twitter. Justice Smith easily concluded that the defendant’s posts and re-posts (excerpted in detail in the decision) were defamatory in that they tended to lower the plaintiffs’ reputations in the eyes of a reasonable person. While the defendant argued that a reasonable person “would understand that the words spoken by the defendant were reflective of the context of the Screenshot of the video posted by the plaintiff,” the posts clearly stated and implied that the plaintiffs were racists, that they were mocking the death of George Floyd, and generally suggested improper conduct.

The defendant raised the defences of justification and fair comment, but the court held that neither defence was made out. The defendant had stated at discovery that she did not know the plaintiffs, never made any inquiry as to the background of the screenshot, and never actually saw the video, while nonetheless being convinced it was racist. While one of the plaintiffs had made an “apology” on social media, the judge held that understood in context, the apology was a justifiable response to the backlash she had experienced, and she had always maintained there was no racist intent or content in the video. The judge also held that the actions of the plaintiffs’ employers were evidence of no more than the employers’ opinions, and did not constitute “evidence that an alleged act of racism is true.” The plaintiffs’ own affidavits explained the entire video and its context, and proved that there was no racism contained in or implied by the video. The defence of justification was therefore not made out because the defamatory statements untrue.

As to the defence of fair comment, while the subject was one of public interest, there was no factual foundation for the defendant’s comments. Moreover, the posts were framed not as expressions of opinion, but as statements of fact. Even if they were opinion, they were not such that any person could honestly express on the proven facts, and the fact that other people agreed with the statements was not evidence that proved anything.

The judge awarded a total of $50,000 each in general damages to the plaintiffs, summarizing the findings on damages as follows:

[92] [The defendant]’s use of her social media accounts gave her tremendous power to harm Justine and Shania’s reputations. Not only were her posts viewed up to 40,000 times, but [the defendant] increased her followers from 2,000 to approximately 5,000 people in a matter of days. Justine and Shania’s losses are significant. [The defendant]’s conduct was inappropriate including vicious and relentless attacks on Justine and Shania’s reputations. [The defendant] used a powerful medium to publish her defamatory remarks, she encouraged others to assist in the termination of employment, she posted personal information, she refused to stop posting and she targeted family members.

The court declined to order aggravated or punitive damages on the basis that the defendant’s actions were not malicious but motivated by naivete, impulsivity and misguidedness. However, Justice Smith did impose a permanent injunction requiring the defendant to take down the posts and prohibiting her from posting any other defamatory statements about the plaintiffs; in light of the defendant’s “aggressive online defamatory campaign and her continued belief that Justine and Shania are racists, I find that there is a likelihood that [the defendant] may continue to publish defamatory statements about Justine and Shania, despite my findings in this decision.”