Appellant's claims are speculative, frivolous, vexatious, appellate court says
A person’s truthful statements about their own experiences, choices, and sexual and religious practices do not constitute an invasion of another’s right to exploit their personality, the Court of Appeal for Ontario has said.
In Hategan v. Frederiksen, 2022 ONCA 217, the appellant and respondent Elizabeth Moore Frederiksen had similar backgrounds. They both had a difficult childhood or adolescence, were members of an extremist neo-Nazi group, left upon becoming disillusioned with the group, and later publicly spoke out against extremism and hate groups.
The appellant sued the respondents for damages for wrongful appropriation of personality, civil conspiracy, injurious falsehood, negligence, and unlawful interference with economic interests.
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The appellant argued that Frederiksen, in her public persona, appropriated her identity as an anti-hate speaker and assumed an appearance and religious and sexual identity that stole the appellant’s “life and accomplishments.” Regarding the respondent Bernie Farber, the appellant took issue with his public statement on a television show that mentioned both the appellant and Frederiksen.
The motion judge dismissed the appellant’s claims on a summary judgment motion and ordered her to pay damages for defamation. She granted a permanent injunction requiring the appellant:
- to refrain from making or publishing any statement referring to Frederiksen;
- to remove the online statements she made about Frederiksen;
- to release the domain names she created using Frederiksen’s name;
- to refrain from using online identifiers containing that name.
The appellant moved for an order to set aside the registrar’s dismissal of her appeal and sought extra time to perfect the appeal. The Court of Appeal for Ontario dismissed this motion, declined to set aside the registrar’s order of dismissal, and refused to grant the appellant’s request for additional time. However, it did recognize the importance of a party’s right of appeal.
The appellate court considered the following factors in making this decision: the appellant’s failure to timely pursue the appeal, the evident malice in the appellant’s actions, the appeal’s little merit, and the prejudice to the respondents.
On the appeal’s merits, the motion judge made well-founded observations that the appellant’s claims were speculative, frivolous, and vexatious, the appellate court ruled. It rejected the appellant’s claims for the following reasons:
- wrongful appropriation of personality: because there was no evidence that Frederiksen used the appellant’s name or likeness by way of commercial exploitation;
- unlawful interference with economic relations: as there was no identified third party or unlawful act;
- injurious falsehood: since there was no evidence of malice or false statements;
- civil conspiracy: because there was no evidence of an agreement or defamatory statements;
- negligence: as that there was no basis for asserting a novel duty of care;
- defamation: since there was no evidence of defamatory statements.
Lastly, the appellate court concluded that it would be prejudicial to subject the respondents to further costs of opposing an appeal with so little merit, considering that the appellant said that she was immune from any judgment awarded against her.