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“A Campaign of Vilification”

March 19, 2020

Defamation plaintiffs granted summary judgment and permanent injunction after effusive campaign of internet defamation

In West Edmonton Mall Property Inc. v. [Defendant], the plaintiff company and its principal had commenced a defamation action against the defendant, who had previously operated a store in the West Edmonton Mall that sold beachwear and swimwear. At one point she had made a Facebook post in which she invited the Premier and Prime Minister to come to her store, in order to discuss the “retail apocalypse” that she felt was happening to small business owners. After this, her store was closed, her lease terminated and her product seized, all for alleged non-payment of rent. The next series of events was described by Justice Douglas Mah of the Alberta Court of Queen’s Bench as follows:

[21]           Following Surfco’s demise at WEM, sometime in 2017 Ms. Proctor began her internet campaign of criticism and disparagement against the Ghermezians and their mall complexes. Using social media platforms such as Facebook, Twitter, Instagram and LinkedIn, as well as her own website (americandreamstore.blogspot.com) and Youtube channel, Ms. [Defendant] has relentlessly attacked, insulted and heaped scorn on David and his family and WEM and its associated businesses. The extent and scope of these attacks are described in some detail in 52 paragraphs of David’s affidavit of November 7, 2019 along with examples as exhibits. Apparently wishing that nothing be overlooked, Ms. Proctor herself, as her own evidence, submitted screenshots of the material in question, which evidence is contained in three large binders and, as I said, comprises by estimate some 1000 pages.

[22]           It would be difficult to recite the complete catalogue of Ms. [Defendant]’s work. Rather, for illustrative purposes, I will mention some examples and try to focus on the material that David and WEM find most troubling and defamatory.

Justice Mah went on to catalogue a large representative sample of the defendant’s internet-based hostility towards the defendants, which was largely along fairly racist, anti-immigration and other critical lines, referring to the individual plaintiff in particular as having stolen the defendant’s business, calling him a “snake” and involved various videos in which the plaintiff’s head was superimposed onto different bodies. On the day of the hearing she had filed a new affidavit with an accompanying video, which showed the head of the plaintiff’s lawyer superimposed onto the body of a bikini-clad woman, and referred to the lawyer’s law firm as “SNAKE LAW.”

The court considered the plaintiffs’ application to be granted summary judgment on the defamation claim (having already dismissed the defendant’s counterclaim for being vexatious and not disclosing a cause of action). The defendant’s various communications were clearly defamatory, particularly in that they suggested that the plaintiffs were criminals and terrorists. Given that the comments were published on the internet, “there was publication of the defamatory comments to the entire world: Fort McKay Métis Community Association v Morin2019 ABQB 185 at paras 1, 55-56.” No defences were available, particularly as the defendant was found to have been motivated by malice.

Further, because the defendant had already wilfully failed to comply with various orders and an injunction against her behaviour, there was “a clear danger that Ms. [Defendant], if unfettered, will engage in online activity that will contravene fundamental notions of justice and undermine the integrity of the judicial process.” Justice Mah extended the previous injunction and added a provision enjoining the defendant from publishing any material or commentary concerning the proceedings or anyone involved in them. It was clear that the plaintiffs were in a position to apply for a permanent injunction as well, and in that regard Justice Mah stated:

As far as I am concerned, what is at stake for Ms. [Defendant] in any permanent injunction application is the extent to which she should be allowed to access and use the internet, given her history of misuse. Her chances for continuing to be allowed to use the internet will, in large part, depend on whether between now and the date of the upcoming application, she has complied with Court Orders and has demonstrated that she can use the internet responsibly.

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