Foodbenders, along Bloor St. W., near Dufferin St. in Toronto, Ont. on Sunday December 6, 2020. Ernest Doroszuk/Toronto Sun/Postmedia

Defamation case against antisemitic slander only the beginning

Palestinian advocacy' is no excuse for Jew hatred

On July 10, 2020, a statement of claim for defamation was issued against Kimberley Hawkins, owner and “directing mind” of now-closed Toronto Bloor St. eatery, Foodbenders. The plaintiff, Shai DeLuca, a Canadian with Israeli citizenship, is a designer and longtime contributor to CTV’s lifestyle show, Cityline. He’s also a gay Zionist who served with the IDF as a combat engineer.

Hawkins is an ardently progressive, anti-Zionist activist. She mounted a gigantic “I (heart) Gaza” sign in Foodbenders’ window; her social media account warned “Zionists” (taken by many to mean Jews) away from her business. In short, you couldn’t ask for any antagonists more passionately divided in their beliefs about Israel or more committed to defending their corner to the bitter end.

The suit was triggered by offensive statements featuring DeLuca’s name on Foodbenders’ official Instagram account; a gravely problematic one read: “(DeLuca) is an IDF SOLDIER (aka terrorist) yet he’s using the BLM movement for likes. How can you sit here and post about BLM when you have your sniper rifle aimed at Palestinian children.”

DeLuca was represented by David Elmaleh and David Rosenberg of Re-LAW LLP. They partnered with The Lawfare Project, which “provides pro bono legal services to protect the civil and human rights of the Jewish people worldwide.” Hawkins’ lawyer was pro-Palestinian activist Stephen Ellis, who also represents controversial Ontario MPP Sara Jama, who was kicked out of the provincial NDP caucus for antisemitic comments on social media.

On Dec 22, a Superior Court judgment was released, finding DeLuca had been defamed in a series of “abhorrent” antisemitic Instagram posts by Hawkins, and was entitled to $85,000 in damages, which included $10,000 in punitive damages to indicate the court’s “outrage” over Hawkins’ conduct. The judge found Hawkins “acted with malice,” was “irresponsible” and had hoped to end DeLuca’s career at Cityline. (Cityline stood by DeLuca. Ironically, Covid and public opprobrium shut Foodbenders down.)

Justice Gina Papageorgiou castigated Hawkins for never apologizing during three years of the suit’s progress. “Despite the many cases referred to me involving allegations like the ones here, the Defendants in this case were not deterred,” the judge wrote. “These kinds of statements not only affect people’s reputations, but they also contribute to prejudice, antisemitism and intolerance and have the potential to incite violence.”

Apart from responding to a Canadian Jewish News reporter’s query for comment on the judgment with personal insults” directed to their reporter — “bitch,” “trash” and “squatter,” and “sending a photo of an Israeli soldier who had recently been killed in the fighting in Gaza” — Hawkins has made no public statement. Stephen Ellis who, in an article he wrote midway through the suit, “When the Israel Lobby Comes for You,” described certain bona fide Jewish community institutions as, in aggregate, “mendacious, vindictive, and violent agents of the Israeli state,” did not respond to a CJN request for comment.

DeLuca’s legal team was happy to comment. David Elmaleh observed that the case is the first he is aware of where an IDF veteran in Canada has successfully pursued a defamation lawsuit related to his military service. The result, he feels may well “deter some (but sadly not all) of the antisemitic vitriol that we have seen online targeting Jews, Israelis and the brave IDF soldiers and first responders.” Human rights lawyer Brooke Goldstein, the Lawfare Project’s Canadian founder and director, commented, “The victory underscores that there will be legal repercussions for those who defame Jewish people under the guise of ‘Palestinian advocacy’.”

Justice Papageorgiou cautioned against reading larger messages into DeLuca’s win, noting in her judgment that defamation suits are meant to “vindicate reputation,” not as a “tool to fight racism, antisemitism or other kinds of prejudice.” And DeLuca was indeed made whole. But how, in the present circumstances, could this case not punch above its weight? If antisemitism was a serious problem before Oct. 7 — and it was — it was a mostly submerged iceberg in terms of public perception. Now the massive iceberg is on full display in all its staggering weight.

Nevertheless, defamation suits on this file cannot treat antisemitism’s root causes; they can only treat its symptoms. As one huge root cause of flagrant antisemitism, the universities have long cried out for a reckoning. Fortunately, the current ferment in the U.S. over Harvard University and other Ivy League antisemitism enablers is also bubbling up here.

The Lawfare Project recently partnered with the law firm of Diamond and Diamond personal injuries Lawyers to file a $77 million class action suit against McMaster University and the McMaster Students’ Union. A Jan. 3 statement of claim alleges that “McMaster University has become, for over a decade, home to systemic discrimination, harassment, hatred, antisemitism, violent discourse, and actual or threatened physical harm amongst the student body.” Plaintiffs are all currently enrolled students and those who graduated within the last two years.

In fact, Diamond and Diamond already have five other prominent universities (plus many of their student unions) — Queen’s, York, Concordia, Toronto Metropolitain and the University of British Columbia — in their proposed crosshairs on the same grounds. Diamonds’ managing partner Sandra Zisckind told CTV news, “You should not be allowed to bring the Hamas flag to a university.” As for free speech rights, “You can disagree with Israel, you can say there needs to be a ceasefire, those are things that are tantamount to free speech, but you cannot say we need to kill the Jews.”

If the suits go forward — none of the claims have been certified by the courts — a win would be tantamount to an immediately brutal, but ultimately healing form of chemotherapy on a long-metastizing social cancer. A loss? Let’s not even go there.