2020 March 4

Elaschuk v. Thelwell, 2020 ONSC 1407

The Ontario Superior Court of Justice granted a motion for contempt brought by the plaintiff against the defendant for her breach of a pre-trial injunction made on May 25, 2018 which ordered that:  “(i) The Defendant shall refrain from making, publishing, or causing to be published any false or defamatory statements referring to the Plaintiff, whether oral, written or distributed via the internet; and (ii) The Defendant shall use best efforts to remove and to preserve electronic copies of all the Defendant’s statements regarding the Plaintiff that are posted on the websites listed in Schedule ‘A’”.   The Divisional Court dismissed the defendant’s motion for leave to appeal the injunction order on November 16, 2018.

The Court noted that on this motion for a finding of civil contempt of the injunction order, the plaintiff had to prove contempt beyond a reasonable doubt (not merely on balance of probabilities which is the usual civil standard of proof).  In this regard, the plaintiff had to prove: (i) that the injunction states clearly and unequivocally what should have been done; (ii) that the party alleged to be in contempt must have actual knowledge of that injunction; and (iii) that the party alleged to be in contempt must have intentionally done the act that the injunction prohibits.  “It is not necessary to demonstrate that the contemnor intended to disobey the order.”

The first two elements were readily proven. Regarding the third element (that the defendant did the prohibited act), the Court stated that the plaintiff was not required to prove that the defendant herself had posted the defamatory statements to her personal websites.  The Court held that it was sufficient that she authorized the publication or knew about the publication and acquiesced in it.  “The statements could not have been posted without [the defendant’s] involvement and acquiescence.  Even if she did not personally post the statements, she conveyed the information with the expectation that it would be posted in order to, in her view, maintain her image.   [The defendant] could have, but did not, request that the statements be taken down.”  In these circumstances, the court found that the defendant caused the defamatory statements to be published.

The Court also found, beyond a reasonable doubt, that the defendant was responsible for the publication of a defamatory post on a third party website, www.badbizreports.com.   The Court noted, inter alia,  that “after the [injunction] Order was released to the parties, but before it was made public, a posting appeared on www.badbizreports.com specifically referring to the contents of the decision.   The posting states the ‘[t]he judge just told her not to post any defamatory postings, but told her that the posting on her website is not defamatory because she was able to prove it.’” “In this case, based on the overwhelming circumstantial evidence, and the absence of a plausible theory that is not more than speculative, I find that the Plaintiff has demonstrated beyond a reasonable doubt that [the defendant] published, or caused to be published, the May 25, 2018 posting to www.badbizreport.com.”

The Court held that the defendant “contemnor” must be afforded the opportunity to purge the contempt before the penalty hearing can take place.  In this case, in order to purge the contempt, the Court held the defendant must delete all defamatory statements about the plaintiff and the plaintiff’s lawyer from her personal websites by March 56, 2020; provide proof of written requests to the third party websites referred to in this ruling that those third parties delete all defamatory statements about the plaintiff and his lawyer; and comply with the injunction order.   The Court invited written submissions from the parties on the appropriate penalty.