for in this Facebook post constitutes harassment. As it relates to Video #6, Ms. Dietrich’s
evidence is that she reported 40 Days to Instagram because of posts and stories that she had
seen in which it makes claims that she believes are misleading, including an October 7, 2021
post that she says suggests “that medical professionals tried to force a woman to get an
abortion by extorting her regarding treatment of an unrelated medical condition unless she
agreed to get an abortion”. Respecting Video #9, Ms. Dietrich states that she posted this
video because it is her opinion that the 40 Days website contains false or misleading
statements about abortion, which is a healthcare service. And, with respect to Video #11,
Ms. Dietrich’s evidence is that she posted this video because it is her opinion that the 40
Days Facebook page promotes misleading information about abortion, a healthcare service,
and she believed it appropriate to use the “report” feature to register this concern. Ms.
Dietrich further submits that she has identified numerous instances where 40 Days’
protesters were not peaceful or where they engaged in harassing behaviour.
Ms. Dietrich also ties her expression and her reason for communicating through the
impugned TikTok videos to the Safe Access to Abortion Services Act, 2017 which she says
was enacted to create safe access zones outside of hospitals in order to “avoid the fear,
intimidation, and harassment associated with anti-abortion protesting”. She argues that,
accordingly, there is a basis in truth for her conclusions that 40 Days’ anti-abortion protests
constitute harassment or fearmongering.
 With respect to Ms. Dietrich’s allegations that 40 Days has engaged in harassing conduct,
40 Days contends that there are a number of reasons to believe that these are false. For
instance, it argues that Ms. Dietrich’s claim that the 40 Days Facebook post, describing a
volunteer being avoided by potential participants he is trying to recruit, depicts harassment
is implausible. As it relates to her October 10, 2021 report of a 40 Days Instagram post as
being “false information”, 40 Days submits that, on cross-examination, Ms. Dietrich
admitted that she had and has no personal knowledge of the incident described involving the
woman seeking medical care, and so she cannot properly claim that it is false. With respect
to Ms. Dietrich’s urgings in her October 21 and 29, 2021 videos, 40 Days submits that Ms.
Dietrich stated her contention that 40 Days is spreading “false health information” arises
from it calling abortion a “tragedy” but that she conceded, on cross-examination, that this
was a pro-life position not health information. Further, 40 Days submits that Ms. Dietrich
did not provide any evidentiary basis for her describing 40 Days as “fearmongering”.
Accordingly, 40 Days contends that Ms. Dietrich does not have a valid defence on the basis
of truth or fair comment.
40 Days also argues that Ms. Dietrich acted with malice in creating the videos and that this
defeats the defence of fair comment. It submits that statements made by Ms. Dietrich,
including “so it messes with 40 Days for Life’s schedule”, “so it ruins 40 Days for Life goal
to fearmonger”, “TikTok, please do your thing”, “don’t let these people protest outside of
hospitals”, and “enough is enough”, demonstrate this malicious intent. It relies on Zoutman
v. Graham, 2019 ONSC 2834, aff’d 2020 ONCA 767, at para. 101, wherein it was held that
a “[c]omment that is made solely for the purpose of annoyance and harassment, or in order
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