The recent decision in Gillespie v. Fraser, 2023 ONSC 537 dealt with the plaintiff’s motion for default judgment against the defendant, Diana Tilbert, following her failure to deliver a Statement of Defence within the prescribed time. In this decision, the court summarizes the applicable criteria for awarding default judgment, and highlights the elements of the torts of intentional infliction of emotional distress, publicity placing the plaintiff in a false light, and civil conspiracy.
The plaintiff, Ms. Gillespie, brought an action against the defendants, Mr. Fraser, Ms. Tilbert and Ms. Hall for the torts of intentional infliction of emotional distress, publicity placing the plaintiff in a false light, and conspiracy.
Mr. Fraser, the plaintiff’s father, was sentenced to life imprisonment in 2015 for the murder of the plaintiff’s mother. After his incarceration, Mr. Fraser received help from the defendants, Ms. Tilbert and Ms. Hall, to create and circulate a defamatory website in 2020 which attempted to deflect blame to the plaintiff for her mother’s death.
The plaintiff commenced this action on March 10, 2022 and alleged that Ms. Tilbert materially aided Mr. Fraser in developing and disseminating the defamatory website. Ms. Tilbert was personally served with the Statement of Claim, but failed to file a Statement of Defence despite obtaining three extensions to do so.
On May 27, 2022, the Superior Court of Justice issued a default declaration against Ms. Tilbert, and a default judgment motion was scheduled to proceed August 22, 2022. Ms. Tilbert’s counsel explained that he was absent from office due to medical issues rendering him unable to file the Defence. He explained that Ms. Tilbert had prepared a Defence that she wished to file. However, this was never communicated to the plaintiff’s lawyer.
Justice Somji ordered that Ms. Tilbert’s counsel file an affidavit by the end of day August 26, 2022, outlining what circumstance gave rise to the situation, after which Justice Somji would consider whether the action could continue. No affidavit was filed. Justice Somji also provided plaintiff’s counsel with the opportunity to provide responding material, which they did on August 31, 2022, supporting their request for default judgment, damages, an order for contempt, and costs.
The questions Justice Somji had to answer were:
1. Should the default declaration signed on May 27, 2022 by the Registrar against the Defendant Ms. Tilbert continue?
2. Should there be an order for Default Judgment to the Plaintiff?
3. If so, what should be the quantum of damages?
4. What quantum of costs is the Plaintiff entitled to?
On the first question, Justice Somji found that the default declaration remained valid, as the plaintiff consented to the filing of the Defence on a later date on multiple occasions and despite Ms. Tilbert’s counsel attending the motion for default judgment in August, they failed to bring a motion to set aside the default declaration or provide materials warranting the continuance of the action.
Should the Court grant the Plaintiff Default Judgement
Justice Somji’s analysis focused on this second question of whether the court should grant the plaintiff default judgment. The court began by citing Rule 19.02(1)(a) and explained that a defendant noted in default is deemed to admit the truth of material facts in the Statement of Claim.
Justice Somji highlighted Rule 19.06 which explains that a plaintiff is not entitled to judgment on a motion for default judgment or at a trial merely because the facts alleged are deemed to be admitted. Instead, there must be facts that entitle the plaintiff to such judgment.
Justice Somji explained that a judge must follow the process set out in Kaur v. Virk, 2022 ONSC 6697, in assessing whether default judgment is appropriate, and must consider:
(i) What deemed admissions of fact flow from the facts pleaded in the Statement of Claim?
(ii) Do those deemed admissions of fact entitle the plaintiffs, as a matter of law, to judgment on the claim?
(iii) If they do not, has the plaintiff adduced admissible evidence which, when combined with the deemed admissions, entitles it to judgment on the pleaded claim?
Justice Somji then extensively reviewed the facts pleaded in the Statement of Claim, including:
- Mr. Fraser’s violent murder of the plaintiff’s mother;
- Mr. Fraser’s guilty plea and sentence of life in prison with no eligibility of parole;
- Mr. Fraser’s friendship with Ms. Tilbert;
- Mr. Fraser’s use of a car owned by Ms. Tilbert as his getaway car after the murder;
- the 176 page website published by Mr. Fraser with help from Ms. Tilbert and Ms. Hall containing false and malicious statements about the plaintiff, which deflected blame for her mother’s death from Mr. Fraser onto the plaintiff;
- Mr. Fraser’s instruction to Ms. Tilbert to create and deliver postcards containing the URL of the website to the plaintiff’s family and friends;
- the website being published and available to the public for a number of months; and
- Ms. Tilbert managing the website and working as an employee for Mr. Fraser posting on the website.
Justice Somji also noted that the plaintiff’s pleadings about Ms. Tilbert’s involvement in the website were supported by the facts pleaded in Mr. Fraser’s Statement of Defence to the action.
The plaintiff explained that the website retraumatized her and caused her to experience significant setbacks in her healing and health after her mother’s death, and made it difficult for her to continue with employment. The website made the plaintiff concerned for her safety, as Ms. Tilbert was engaged in surveillance as demonstrated by the imagery on the website.
The plaintiff claimed her overall health deteriorated, and she suffered from anxiety, depression, PTSD, hypervigilance, and constantly monitored her surroundings and avoided leaving her home. The plaintiff’s physicians increased her dosage of medication to manage panic attacks, depression and PTSD as a result of the website triggering her complex PTSD. The plaintiff’s family doctor determined she was unable to continue working as she was no longer functioning cognitively at her job two months after learning of the website. As such, she received disability payments.
Justice Somji then assessed the torts pled, and whether their respective elements were satisfied.
Intentional Infliction of Emotional Distress
For the tort of intentional infliction of emotional distress, the court explained that a plaintiff must establish:
(1) the defendant engaged in flagrant or outrageous conduct;
(2) calculated to produce harm; and
(3) resulting in a visible and provable illness.
Justice Somji found that the defendants’ conduct in creating and circulating the website containing false and malicious statements was flagrant and outrageous conduct intended to demean the plaintiff. The court found that the contents of the website would be highly offensive to a reasonable person, and that the website was a “reckless attempt to change the narrative of Mr. Fraser’s violent crime.“
Justice Somji found that Ms. Tilbert knew or ought reasonably to have known that the false claims on the website would be distributed to the plaintiff’s family and the public at large. The court recognized the plaintiff’s significant psychological harm, and concluded that it was a direct consequence of Mr. Fraser’s conduct, aided by Ms. Tilbert.
Publicity Placing the Plaintiff in a False Light
For the tort of publicity placing the plaintiff in a false light, the plaintiff must establish:
a) the false light in which the plaintiff was placed would be highly offensive to a reasonable person; and
b) the defendant 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
Justice Somji found this test was met as Mr. Fraser was convicted of the murder of the plaintiff’s mother, which was reported in the media. Ms. Tilbert would have been aware of the murder conviction, given her relationship to Mr. Fraser and the fact that her vehicle was used as the getaway vehicle. Ms. Tilbert developed the website which falsely directed responsibility for the murder onto the plaintiff despite knowing or acting in disregard to the falsity of the information. Ms. Tilbert presented the facts surrounding the murder in a false light, and Justice Somji found that this was highly offensive to a reasonable person.
For the civil tort of conspiracy, Justice Somji explained that a statement of claim must state with precision and clarity material facts as to:
1) the parties to the conspiracy and their relationship to each other;
2) the agreement among the defendants to conspire, including particulars as to the time, place, and mode of agreement;
3) the precise purpose or object of the conspiracy;
4) the overt acts alleged to have been done by each of the alleged conspirators in pursuance and furtherance of the conspiracy, including the time, place and nature of the acts; and
5) the injury and damage caused to the plaintiff as a result of the conspiracy.
Additionally, a defendant’s predominant purpose must be to inflict harm on the plaintiff. The plaintiff pleaded that Ms. Tilbert conspired in developing and disseminating the website which caused her harm. Here, Justice Somji found that the tort of conspiracy had not been met, as there were no particulars pleaded regarding time, place and mode of agreement, nor was it clear that infliction of harm was Ms. Tilbert’s predominant purpose.
Justice Somji concluded that there was a finding of liability against Ms. Tilbert for intentional infliction of emotional distress and publicity placing the plaintiff in a false light, but not for civil conspiracy.
Damages & Costs
Regarding the plaintiff’s request for damages, Justice Somji found that the amount of damages sought required further medical evidence, in addition to an Affidavit from the plaintiff explaining damages suffered. Therefore Justice Somji reserved her judgment in this area.
Justice Somji also reserved judgment on the issue of costs, requiring plaintiff’s counsel to make further submissions on the appropriateness of the junior lawyer’s fee of $300/hour. The court declined to make a finding of contempt, given that no motion for contempt was brought or filed.