2023 ONSC 537, 2023 ONSC 537

CITATION : Gillespie v. Fraser, 2023 ONSC 537 COURT FILE NO.: 22-76 DATE: 2023/01/20 SUPERIOR COURT OF JUSTICE - ONTARIO RE: Kimberly Gillespie, Plaintiff AND: George Fraser, Diana Tilbert, and Tina Capone Hall, Defendants BEFORE: Somji J. COUNSEL: Devon Sivill , Emilie Aloe Counsel, for the Plaintiff Robert W.H.

Kivlichan Counsel, for the Defendant Diana Tilbert Tina Capone Hall, Defendant, Self-Represented George Fraser, Defendant, Self-Represented HEARD: August 25, 2022, Kingston reasons for Default judgment Introduction [ 1 ] The Plaintiff brings motion to obtain Default Judgment against Defendant Diana Tilbert for failure to deliver a Statement of Defence within the time prescribed by the Rules of Civil Procedure , R.R.O. 1990, Reg. 194 . [ 2 ] The Defendant George Fraser is the Plaintiff’s father. He was sentenced to life in prison on June 3, 2015, for murdering the Plaintiff’s mother.

He does not have access to the internet while incarcerated but was able to create a website in 2020 entitled “abandonedandbetrayed” (hereinafter “website”) defaming the Plaintiff and blaming her for her mother’s death and circulating the website URL to the Plaintiff’s family and friends through postcards. [ 3 ] On March 10, 2022, the Plaintiff brought an action against the Defendants for the tortious acts of intentional infliction of emotional distress, publicity placing the Plaintiff in a false light, and conspiracy. The Plaintiff claims that the Defendant Ms. Tilbert materially aided Mr.

Fraser in developing and disseminating the website and is thereby liable for the tortious acts. [ 4 ] Ms. Tilbert was personally served with the Action on March 13, 2022. Plaintiff’s counsel granted three extensions to Ms. Tilbert’s counsel to permit her to file her Statement of Defence , and she failed to do so. Consequently, on May 27, 2020, the Superior Court of Justice Registrar issued a default declaration against Ms. Tilbert. [ 5 ] The matter was scheduled for a motion for Default Judgment before me on August 22, 2022. On that day, Ms.

Tilbert’s counsel indicated that due to medical issues resulting in his absence from the office, he was unable to file a Statement of Defence. Counsel indicated Ms. Tilbert had prepared a Statement of Defence, and he wished to file it and for the Action to continue. Counsel had not contacted the Plaintiff’s counsel since May 2022 to apprise him of the situation, and the motion hearing was the first time that Plaintiff’s counsel learned of the situation. Upon hearing submissions, I ordered Ms.

Tilbert’s counsel to file an affidavit by end of day August 26, 2022, outlining the circumstances giving rise to the situation following which I would determine if the Action could continue. No such affidavit was filed nor has the court received any update or materials from Ms. Tilbert’s counsel. [ 6 ] At the motion hearing, I also provided Plaintiff’s counsel the opportunity to provide responding materials, which they did on August 31, 2022.

In her responding materials, the Plaintiff maintains her request for Default Judgment and damages and also seeks an order for contempt and costs as a result of the Plaintiff’s disregard for my Order. [ 7 ] The Plaintiff seeks damages in the amount of $400,000, pre and post-judgment interest in accordance with ss. 128 and 129 of the Courts of Justice Act , R.S.O. 1990, c. C. 43 , and costs of the action and motion on a full or substantial indemnity basis. [ 8 ] The issues to be decided are: 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 yes, what should be the quantum of damages? 4. What costs is the Plaintiff entitled to? Evidence in support of the motion

[ 9 ] In support of its motion, the Plaintiff relies on the following: 1 . The Pleadings in the Action; 2 . The Notice of Motion; 3 . Motion Record of June 30, 2022 which includes the Statement of Claim as well as a Statement of Defence from Defendant Mr. Fraser and exhibits; 4 . The Affidavit of Emilie Aloe dated June 15, 2022, and exhibits; 5 . The Affidavit of Kimberly Gillespie dated June 15, 2022, and exhibits; 6 . Submissions of counsel at the motion hearing of August 25, 2022; and 7 . Plaintiff’s Written Responding Materials filed August 31, 2022.

Issue 1: Should the default declaration signed by the Registrar against the Defendant Ms. Tilbert on May 27, 2022, continue? [ 10 ] Ms. Tilbert was personally served with the Statement of Claim on March 13, 2022. To date, she has not filed a Statement of Defence. Plaintiff’s counsel consented to extensions to file a statement of defence by April 18, 2022, May 17, 2022, and May 26, 2022, but Ms.

Tilbert failed to file Statement of Defence within the requisite time periods: Rules 18.01 and 19.01. [ 11 ] A default declaration was signed by the Registrar on May 27, 2022, and a date was set for a motion for Default Judgment on August 22, 2022. Ms. Tilbert’s counsel was given notice of the motion for Default Judgment. He did not bring a motion to set aside the default declaration and failed to provide any materials that would warrant continuation of the Action despite having been provided an opportunity to do so at the motion hearing.

Consequently, I find that the default declaration remains valid, and the motion for default judgment should proceed. Issue 2: Should the Court grant Default Judgment to the Plaintiff? [ 12 ] The Plaintiff brought an Action claiming damages against the Defendants jointly or severally for intentional infliction of emotional distress, publicity placing the Plaintiff in a false light, and conspiracy. The Plaintiff claims that Ms. Tilbert materially aided and abetted Mr. Fraser in these tortious acts. [ 13 ] Rule 19.02(1) (

a) provides that a defendant who has been noted in default is deemed to admit the truth of material facts alleged in the statement of claim. [ 14 ] Rule 19.06 provides that a plaintiff is not entitled to judgment on a motion for default judgment or at trial merely because the facts alleged in the statement of claim are deemed to be admitted. There must be facts that entitle the Plaintiff to judgment. [ 15 ] The process a judge must follow on a motion for default judgment was recently set out in Kaur v Virk 2022 ONSC 6697 at para 14 citing Justice D.M.

Brown, as he then was, in Elekta Ltd. v Rodkin , 2012 ONSC 2062 at para. 14 : [14] Accordingly, on a motion for default judgment the inquiry undertaken by the court is the following: (

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? [ 16 ] In this case, the Plaintiff pleads that on or about January 16, 2014, the Defendant Mr. Fraser violently murdered the Plaintiff’s mother, Judith Fraser, in the parking lot of her St.

Catharine’s apartment complex stabbing her 18 times in the chest with a knife. The murder took place shortly after Judith Fraser decided to separate from Mr. Fraser and had obtained her own apartment. [ 17 ] Ms. Judith Fraser (the “deceased”) was 73 years of age at the time. Mr. Fraser and the deceased had been married 47 years and had two daughters, the Plaintiff and her sister. According to the police, Mr. Fraser utilized an orange car owned by Ms. Tilbert as his getaway vehicle after the murder. Ms. Tilbert had become friends with Mr. Fraser not long before the murder. On June 3, 2015, Mr.

Fraser pled guilty to murder and was sentenced to life in prison with no eligibility for parole for 18 years. The conviction was publicized in a media

article filed in the Motion Record. [ 18 ] In November 2020, the Plaintiff learned that Mr. Fraser, with the assistance of Ms. Tilbert and the Defendant Tina Capone Hall, published a 176 page website that contained false and malicious statements about the Plaintiff and deflected blame for her mother’s death from Mr. Fraser to her. The Plaintiff reports that she is referenced 517 times on the website. [ 19 ] Mr. Fraser circulated the website to 15 friends and family by instructing Ms. Tilbert and/or Ms.

Hall to create and deliver postcards containing the URL for the website and directing individuals to view it. [ 20 ] The Plaintiff’s husband received a message from a friend who had received such a postcard. [ 21 ] The postcards included the following statements:

Judy Fraser’s murder is a story of “inconvenient truth” • Why did it happen? • What was behind those stabbing thrusts? • How could it have been prevented? For the answers, please visit <abandonedandbetrayed.com> George [ 22 ] Upon learning of the website, the Plaintiff went to view the website and reported to to Staff Sargent Steve Magistrale of the Niagara Regional Police on or about November 5, 2020. She reported to the police that she found the contents “gut-wrenching” and “shocking” and was shaken by it. She believes the website was written entirely by Mr.

Fraser given the detailed personal information contained in it about her and her family that would have been known by few people. Specifically, the Plaintiff is aware that the police have identified the individuals involved as Diana Tilbert (“Ms. Tilbert”) and Tina Capone Hall (“Ms. Hall”). The police investigation has concluded, and Ms. Gillespie understands that Mr.

Fraser was charged with criminal harassment and the failure to obey a court order, and that criminal proceedings regarding this matter are ongoing. [ 23 ] The website contains countless false, malicious and derogatory comments about the Plaintiff including that she was responsible for her mother’s separation from her father, had estranged her mother from her life, and had contributed to her mother’s depression, all of which made her responsible for her mother’s death.

The Plaintiff sets out in her Statement of Claim 22 examples of the types of false and malicious statements made on the website. [ 24 ] This was not the first instance in which Mr. Fraser has tried to deflect blame for the murder onto the Plaintiff. After stabbing her mother, Mr. Fraser drove to the Plaintiff’s home and blamed her for his actions. He believed at the time and continues to believe that the Plaintiff is responsible for her mother’s death. [ 25 ] In the website introduction, Mr.

Fraser claims he authored and posted the website upon request of an Ontario university professor and it was to be utilized in a possible case study thereby allowing the website to potentially be accessed by many others. [ 26 ] The Plaintiff understands the website remained available to the public until January 2022, when Plaintiff’s counsel reported to Mr. Fraser the potential for legal action. [ 27 ] The Plaintiff alleges that Ms. Tilbert and Ms. Hall aided Mr. Fraser in the development of the website given Mr. Fraser does not have access to the internet while in jail. The Plaintiff believes that Ms.

Tilbert and/or Ms. Hall, upon Mr. Fraser’s instructions, attended the deceased’s gravesite for the purposes of taking photos that appear on the website. In addition, Ms. Tilbert and Ms. Hall assisted Mr. Fraser by typing up and posting the contents on the website, adding imagery requested by Mr. Fraser, and printing and disseminating the postcards that were delivered to the intended recipients. To the best of the Plaintiff’s knowledge, Ms. Tilbert shares a joint account with Mr.

Fraser and has power of attorney and would have been able to access and utilize his funds to carry out his instructions while he is incarcerated. [ 28 ] In Mr. Fraser’s own Statement of Defence, Mr. Fraser acknowledges he does not enjoy direct access to the internet while in jail. He states that the website was a personal expression of his thoughts, beliefs, and opinions and where he had published his autobiography/memory entitled “What happened to George and Judy?” He views the website and its contents as something protected by his Charter right to freedom of expression. [ 29 ] Mr.

Fraser also acknowledges that Ms. Tilbert and Ms. Hall were employees in their endeavours to support the internet publication of his autobiography because they acted under his instructions, were paid, and were reimbursed for any expenses. Mr. Fraser explains that Ms. Tilbert and Ms. Hall acted as surrogates in managing the website and were assured they were doing nothing wrong. Consequently, he argues they should not be named in the lawsuit. Mr. Fraser also acknowledges that promotional postcards for the website were mailed to family, friends, neighbours, and community leaders in the first week of November 2020.

In short, the Plaintiff’s pleadings about the involvement of Ms. Tilbert in creating and disseminating the website are supported by the facts pleaded in Mr. Fraser’s Statement of Defence. [ 30 ] The Plaintiff was undoubtedly traumatized by her father’s actions in murdering her mother. She was, however, able to return to work one month after her mother’s passing in February 2014. She was employed on a full-time basis and had begun to heal by November 2020. By January 2021, however, she took a leave from her work. As explained further below, Mr.

Fraser’s conduct in publishing and circulating the website, aided by Ms. Tilbert, retraumatized her, caused her to experience significant setbacks in her healing and health, and made it difficult for her to continue with employment. [ 31 ] The Plaintiff pleads that the website is also a reiteration of Mr. Fraser’s hatred for her. On the website, he blames her not only for her mother’s death but also for his incarceration. She continues to live in fear of further retaliation by him.

Even though he is incarcerated, she does not feel safe given he was able to orchestrate the creation and dissemination of a defamatory website from a distance and with limited electronic means. [ 32 ] The Plaintiff is also concerned that Mr. Fraser instructed Ms. Tilbert to engage in surveillance of her and her family given the imagery on the website of her mother’s grave and that Ms. Tilbert will continue to survey her. Ms. Tilbert resides within driving distance to the Plaintiff’s home.

This has heightened the Plaintiff’s fear and anxiety and has caused her overall health to deteriorate. [ 33 ] Since the learning of the website, the Plaintiff has experienced the following:

(

a) Hypervigilance; (

b) She avoids leaving her home, which has led to her feeling alone and isolated; (

c) She constantly monitors her surroundings out of fear that Mr. Fraser may be orchestrating surveillance of her or a violent attack on her or her family; (

d) Anxiety (including panic attacks); (

e) Depression; and (

f) Complex Post-Traumatic Stress Disorder (“PTSD”). [34] Viewing the website triggered the Plaintiff’s complex PTSD which manifested itself in symptoms including but not limited to:dissociation, nausea, dizziness, panic attacks, difficulty sleeping, difficulty focusing, ongoing flashbacks, migraines, chronic fatigue, andstress which aggravates her ulcerative colitis. Consequently, the Plaintiff’s physicians have increased her dosages of several medicationsto manage panic attacks, depression, and PTSD. She has also been prescribed a new medication to treat her ongoing nightmares. Herpsychiatrist Dr.

Naqvi has expressed concern that the high doses of medication places her at increased risk of unintended side effectswhich could further increase her anxiety. [35] In addition to medical treatment, the Plaintiff also continues to rely on holistic approaches including yoga, counselling, andpsychotherapy to treat and manage her trauma. [36] Mr. Fraser’s conduct, aided and abetted by Ms. Tilbert, has also impacted the Plaintiff’s employment. Ms. Gillespie has beenemployed with the Canada Revenue Agency (CRA) since September 30, 1996.

She was initially a Collections Contact Officer and hassince worked trust accounts such as Payroll, GST, and Corporate Tax Accounts. Throughout her 25 plus year career, she worked for 18different team leaders, several different managers as well as assistant directors at both the Hamilton Tax Services Office and the St.Catharines Tax Services Office. She maintains that during her employment she was always a dedicated and hard-working employee withno history of poor performance. [37] In January 2021, less than two months after learning of the website, Ms. Gillespie’s family doctor, Dr. J.

Ramanauskas,determined she was unable to continue working as she was no longer functioning cognitively at her job. As a result, Ms. Gillespie hasbeen in receipt of disability payments since January 2021 and which will continue until May 2023, at which time her condition will bereassessed. [38] The Plaintiff’s leave from employment has resulted in a 30% reduction in her annual income and a 5% annual loss to herpension for each year that she is not working as an employee. Prior to learning of the website, Ms.

Gillespie had intended to continue heremployment until at least September 30, 2031, which would have equalled 35 years of service and would have enabled her to receive70% of her pensionable income per year. Her plans have been disrupted.

Intentional infliction of emotional distress [39] To establish the tort of intentional infliction of emotional distress, the plaintiff must establish: (1) the defendant engaged inflagrant or outrageous conduct; (2) calculated to produce harm; and (3) resulting in a visible and provable illness: Prinzo v BaycrestCentre for Geriatric Care (2002), (ON CA), 60 O.R. (3d) 474 (C.A.), at para. 48.

These elements were furtherexplained in Barker v Barker, 2020 ONSC 3746 [1204] The first of these ingredients encompasses a relatively wide range of conduct, including humiliating or demeaning verbal abuse.The second ingredient requires that “…the actor desires to produce the consequences that follow from the act, or if the consequences areknown to be substantially certain to follow”, such as where a supervisor derides an employee with the aim to getting her to quit: Boucherv Wal-Mart Canada Corp., 2014 ONCA 419, paras 35, 46.

The third ingredient requires a psychiatric injury that “is ‘serious andprolonged and rise[s] above the ordinary annoyances, anxieties and fears’ that come with living in civil society”, Saadati vMoorhead, 2017 SCC 28 , [2017] 1 SCR 543, at para 37. Examples of such injuries would include serious levels of stress,disturbed sleep, and mood-related issues: Boucher, at paras 37-38. [40] I find that the Defendants’ conduct in creating and circulating the website that one, contained false and malicious statementsthat state the Plaintiff is responsible for her mother’s death when Mr.

Fraser had pled guilty to murdering the deceased and two, includedfalse and malicious statements about the Plaintiff’s character and her treatment of her mother is flagrant and outrageous conduct. It wasconduct that was clearly intended to demean the Plaintiff. [41] I am satisfied that the contents of the website would be highly offensive to a reasonable person. The 22 examples ofstatements made in the 176-page website as set out in the Statement of Claim indicate the callous nature of the content. The website wascirculated to family members and close friends of the Plaintiff. Mr.

Tilbert would have known that the website was a reckless attempt tochange the narrative of Mr. Fraser’s violent crime by trying to publicly shift the blame for it onto the Plaintiff. Given Ms. Tilbert’sparticipation in the distribution of the postcards to family members and the opening statement on the website suggesting it was for auniversity case study, the Defendants, including Ms.

Tilbert, knew or ought reasonably to have known that the false claims on thewebsite would be disseminated not only to the Plaintiff’s close friends and family, but potentially to a larger public, and thereby wouldresult in psychological and possibly reputational harm to the Plaintiff. I find that Mr. Fraser’s conduct in developing and circulating thewebsite, aided by Ms. Tilbert, was calculated to inflict harm on the Plaintiff.

[ 42 ] I also find that in posting and circulating the website with the assistance of Ms. Tilbert, Mr. Fraser intended to intimidate and frighten the Plaintiff and demonstrate to her that he was able to exercise power over her while incarcerated. [ 43 ] I am satisfied that as a direct consequence of Mr. Fraser’s conduct, aided by Ms. Tilbert, the Plaintiff has experienced significant psychological harm and has had to undergo various forms of treatment to address it. I am also satisfied that the conduct resulted in her leave from employment.

Prior to the dissemination of the website, the Plaintiff had returned to work following her mother’s death and begun to heal from that tragic experience. Publicity placing the Plaintiff in False Light [ 44 ] To establish the tort of publicity placing a person in False Light, the Plaintiff must establish: (

a) the false light in which the other was placed would be highly offensive to a reasonable person, and (

b) the actor 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: Yenovkian v Gulian, 2019 ONSC 7279 (Ont. S.C. J.) at para 164 ; Kaur v Virk 2022 ONSC 6697 at para 24 . Furthermore, the plaintiff need not prove that her reputation would be lowered in the eyes of the community: Kaur at para 25 . [ 45 ] In this case, Mr. Fraser was convicted of murder of the Plaintiff’s mother. This was public knowledge and reported in the media. Ms.

Tilbert would have been well aware of the murder conviction because of her relationship with Mr. Fraser, and her familiarity with the event given her vehicle was reported by the police as the getaway vehicle used by Mr. Fraser. In allowing for the development and dissemination of a website that falsely directs responsibility of the murder to the Plaintiff, Ms. Tilbert presented information about the circumstances of the death of the deceased in a false light, and I find this information would be highly offensive to a reasonable person. I also find that Ms.

Tilbert knew or acted in reckless disregard to the falsity of the information on the website. Conspiracy [ 46 ] Finally, the Plaintiff pleads that the Defendants committed civil conspiracy in that they acted in concert with a common goal when they developed, posted, and publicly distributed the website.

The Plaintiff pleads that the Defendants in conspiring to develop, post and publicly distribute the website committed the common law torts of intentional infliction of emotional distress and publicity placing the Plaintiff in false light. [ 47 ] To plead civil conspiracy, 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: Ontario Consumers Home Services Inc. v EnerCare Inc., 2014 ONSC 4154 at para 24 . [ 48 ] Furthermore, the defendant’s predomination purpose must be to inflict harm on the plaintiff.

It is not enough that the harm which resulted to the plaintiff is the collateral result of the defendant’s acts which may have been motivated by other interests.: Ontario Consumers Home Services Inc. v EnerCare Inc. , at para 23 . [ 49 ] As explained by the Ontario Court of Appeal in Paul’s Storage Inc v Immediate Logistics Limited , 2022 ONCA 573 at paras 77 to 80 , if the facts pleaded do not support the conclusion of law pleaded, a motion judge may decline to grant judgment: [77] Accordingly, I return to the question of whether the Umlauf Proposition is good law.

In my view, it is not, and the approach articulated in Segraves , Salimijazi , and Nikore should be followed. Conclusions of law, and of mixed law and fact, are not to be deemed admitted under r. 19.02(1) where a defendant has been noted in default. If the facts pleaded do not support the conclusion of law pleaded, the motion judge may decline to grant judgment despite the failure of the defendant to defend the action: Salimijazi , at para. 19.

The motion judge is entitled to scrutinize both the deemed admissions in the pleading and any evidence tendered by the plaintiff to see whether the plaintiff is entitled to judgment: Salimijazi , at para. 28. [78] This approach is compatible with a plain and harmonious reading of rr. 19.02(1)(

a) and 19.06, whereas the Umlauf Proposition is not. [79] For ease of reference, I reproduce those provisions here: 19.02

(1) A defendant who has been noted in default, (

a) is deemed to admit the truth of all allegations of fact made in the statement of claim[.] 19.06 A plaintiff is not entitled to judgment on a motion for judgment or at trial merely because the facts alleged in the statement of claim are deemed to be admitted, unless the facts entitle the plaintiff to judgment . [Emphasis added.] [80] On a plain reading of r. 19.02(1)(a), it applies to allegations of fact made in the statement of claim, not to conclusions of law or mixed law and fact. Rule 19.02(1)(

a) does not deem everything in a statement of claim admitted, only allegations of fact. Rule 19.06

provides that a plaintiff is not entitled to judgment merely because the “facts alleged in the statement of claim” are deemed to be admitted. Again, there is no reference to conclusions of law or mixed law and fact. And, significantly, under r. 19.06, judgment is not to be granted unless the facts deemed to be admitted “entitle the plaintiff to judgment”. Giving effect to the two rules harmoniously requires distinguishing between allegations of fact and conclusions of law.

The court must determine whether the deemed factual admissions in the pleading and any evidence tendered by the plaintiff entitle the plaintiff to judgment. [ 50 ] In this case, while the plaintiff pleads that Ms. Tilbert conspired in developing and disseminating the website which caused her harm, and Mr. Fraser’s statement of defence corroborates the pleadings by acknowledging that Ms. Tilbert was paid to assist him in these tasks, there are no particulars pleaded with respect to time, place, and mode of agreement as well as the precise purpose of the conspiracy.

It is also unclear whether the infliction of harm was Ms. Tilbert’s predominant purpose as opposed to another purpose such as revenue collection. Based on the materials filed, I find the tort of conspiracy has not been made out. Issue 3: If so, in what quantum should damages be awarded? [ 51 ] The Plaintiff seeks both general and punitive damages in the amount of $400,000 against Ms. Tilbert. Ms.

Tilbert was advised by letter dated April 8, 2022, that if default judgment was granted by the court, an order could be made against her for the full amount claimed in the Statement of Claim. [ 52 ] The Plaintiff claims general damages for loss of her future earning capacity as described above. The Plaintiff also seeks punitive damages. She argues the Defendants ought to be punished and deterred from future misconduct. [ 53 ] The amount of damages sought in this case requires further medical evidence and evidence related to loss of revenue from employment.

An affidavit from the Plaintiff regarding damages suffered should also be filed. It is also unclear from the submissions filed what the range of damages is for the particular torts pleaded. Consequently, I will remain seized of the matter and the issue of quantum of damages shall be determined following the filing of additional evidence and submissions of counsel. Contempt motion [ 54 ] Plaintiff’s counsel requests a finding of contempt against Ms. Tilbert’s counsel for failing to comply with my directions at the motion hearing and in my written endorsement of August 25, 2022.

However, no motion for contempt was brought and filed against counsel for Ms. Tilbert, and in the absence of proper notice and hearing of the matter, I decline to make such an order. Costs of the Action and Motion for Default Judgment [ 55 ] The Plaintiff seeks costs in the amount of $12,505.30 in fees and disbursements in relation to this Action and the motion for default judgment. The costs consist of legal fees in the amount of $11,399.44 and disbursements in the amount of $1,105.86 including HST.

The fees are for 32 hours of service by lead counsel who has 8 years experience, an associate who had less than one-year experience, and a clerk. Lead counsel’s rate is $350/hour. The junior counsel’s rate is $300/hour which I find is not commensurate with their experience. [ 56 ] The issue of costs will be reserved to allow Plaintiff’s counsel to make further submissions on the appropriateness of the junior lawyer’s rate and the grounds for costs on a full or substantial indemnity basis. Conclusion [ 57 ] There is a finding of liability against Ms.

Tilbert for intentional infliction of emotional distress of the Plaintiff and publicity placing the Plaintiff in false light. [ 58 ] The issue of the quantum of damages and costs are reserved pending further submissions from Plaintiff’s counsel. __________________ Somji J. Date: January 20, 2023 CITATION : Gillespie v. Fraser, 2023 ONSC 537 COURT FILE NO.: 22-76

DATE: 2023/01/20 ONTARIO SUPERIOR COURT OF JUSTICE RE: Kimberly Gillespie, Plaintiff AND: George Fraser, Diana Tilbert, and Tina Capone Hall, Defendants BEFORE: Somji J. COUNSEL: Devon Sivill , Emilie Aloe Counsel, for the Plaintiff Robert W.H. Kivlichan Counsel, for the Defendant Diana Tilbert Tina Capone Hall, Defendant, Self-Represented George Fraser, Defendant, Self-Represented DEFAULT JUDGMENT Somji J. Released: January 20, 2023